An unprecedented attempt by a British oil trading firm to prevent the Guardian reporting parliamentary proceedings collapsed following a spontaneous online campaign to spread the information the paper had been barred from publishing.
the law firm representing Trafigura, was accused of infringing the supremacy of parliament after it insisted that an injunction obtained against the Guardian prevented the paper from reporting a question tabled on Monday by the Labour MP Paul Farrelly.
Farrelly's question was about the implications for press freedom of an order obtained by Trafigura preventing the Guardian and other media from publishing the contents of a report related to the dumping of toxic waste in Ivory Coast.
Guardian was prevented from identifying Farrelly, reporting the nature of his question, where the question could be found, which company had sought the gag, or even which order was constraining its coverage.
But overnight numerous users of the
social networking site Twitter posted details of Farrelly's question and by this morning the full text had been published on two prominent blogs as well as in the magazine Private Eye.
Carter-Ruck withdrew its gagging attempt by lunchtime, shortly
before a 2pm high court hearing at which the Guardian was about to challenge its stance, with the backing of other national newspapers.
MPs from all three major parties condemned the firm's attempt to prevent the reporting of parliamentary
proceedings. Farrelly told John Bercow, the Speaker : Yesterday, I understand, Carter-Ruck quite astonishingly warned of legal action if the Guardian reported my question. In view of the seriousness of this, will you accept representations from me
over this matter and consider whether Carter-Ruck's behaviour constitutes a potential contempt of parliament?
The Commons question reveals that Trafigura has obtained a hitherto secret injunction, known as a super-injunction , to
prevent disclosures about toxic oil waste it arranged to be dumped in west Africa in 2006, making thousands of people ill. Farrelly is asking Jack Straw, the justice secretary, about the implications for press freedom of a high court injunction obtained
on 11 September 2009 by Trafigura on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura :
61 N Paul Farrelly (Newcastle-under-Lyme): To
ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on
19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in
the Ivory Coast, commissioned by Trafigura. (293006)
62 N Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, if he will (a) collect and (b) publish statistics on the number of
non-reportable injunctions issued by the High Court in each of the last five years. (293012)
63 N Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what mechanisms HM Court Service uses
to draw up rosters of duty judges for the purpose of considering time of the essence applications for the issuing of injunctions by the High Court.
How super-injunctions are used to gag
Injunctions have become one of the most effective tools powerful individuals and corporations reach for when they want to silence the media. In their simplest form, they prevent news organisations from reporting what happens in
court, usually on the basis that doing so could prejudice a trial.
Super-injunctions that prevent news organisations from revealing the identities of those involved in legal disputes, or even reporting the fact that reporting restrictions
have been imposed, have emerged recently. They grew out of family cases and then developed further as a result of the privacy law that has come into being in the UK on the back of the right to privacy enshrined in the 1998 Human Rights Act, itself based
on the European convention on human rights.
That law has evolved through a series of high court rulings and was used by Max Mosley, the Formula One chief, last year to win damages from the News of the World when it revealed details about his sex
life. But this privacy law, welcomed by some as a way of protecting against tabloid intrusion, has further boosted the use of injunctions whose terms of reference are far wider than ever before.
Libel lawyers Carter-Ruck and Schillings have proved
adept at persuading judges that injunctions should now be granted on privacy grounds. Some tabloid newspapers are being served with a handful of such orders each week, according to media lawyers. The Guardian has been served with at least 12
notices of injunctions that could not be reported so far this year, compared with six in the whole of 2006 and five the year before.
A suppressed report which details how an oil company dumped toxic waste in Africa that may cause serious burns has now been released following a parliamentary row over freedom of speech.
The study commissioned just weeks after the incident in West
Africa concluded that the dumping would have been illegal under European pollution laws and suggests that the likely cause of the illness reported by locals was the significant release of potentially lethal gas.
The report had been
kept secret after Trafigura, one of the world's largest independent oil trading firms, obtained a super injunction that threatened the centuries-old privilege of newspapers to report what MPs can say freely in the Commons.
On Friday night,
as the High Court gagging order was lifted, senior figures at Trafigura admitted their approach may have been heavy-handed and insisted it had not been their intention to try to gag Parliament.
Index on Censorship and English PEN welcomed MPs' robust response in an adjournment debate to law firm Carter-Ruck's challenge to Parliamentary reporting, and called on them to strengthen the public's right to information by banning the use of so-called
super injunctions except in extreme circumstances.
Jo Glanville, Editor of Index on Censorship, said: The widespread use of super injunctions is a serious threat to media freedom in this country - and to the fabric of open democracy. It
is essential that this debate marks the beginning of reform, so that individuals and companies are no longer free to gag the press and prevent information that's clearly in the public interest from coming under scrutiny.
Director of English PEN, said: The rights of Parliament are the rights of citizens. Unless Parliament is free to debate everything that MPs believe to be important, it can't do its job properly. And unless the public is free to know what Parliament is
talking about, we have closed government. Super injunctions compromise democracy and should be banned, except in extreme circumstances.
MPs from the three main parties voiced their concerns about super injunctions and the impact of English
libel law on free speech in an adjournment debate called by Evan Harris MP in the wake of the Trafigura affair, in which the law firm Carter-Ruck argued that a super-injunction prevented the media from reporting on a Parliamentary question asked
by Paul Farrelly MP.
During the debate, Denis MacShane MP called for the partners of Carter-Ruck to be called to the Bar of the House of Commons to account for their attempts to subvert Parliamentary democracy.
MPs commended the work
of Evan Harris, English PEN and Index on Censorship in raising awareness of the failings of English libel law.
David Heath MP asked the government to confirm that the Parliamentary Papers Act 1840, which grants the media the right to report on
everything in Parliament, is still in force.
Responding to the debate, Bridget Prentice, Minister for Justice, said: It is not possible to fetter Parliament . She confirmed that the advice given by Carter-Ruck in their letter of 14 October
to the Speaker was incorrect. She said: we are very concerned that super injunctions are being used more frequently, especially in libel. And she confirmed that the Parliamentary Papers Act 1840 was still in force.
Prentice promised further
guidelines on the use of super injunctions and agreed that defamation law needs to be tightened up . She stated that the government would abolish the antiquated laws of criminal libel, obscene libel and seditious libel in an amendment to the
Coroners & Justice Bill in response to pressure by Index on Censorship, Article 19 and English PEN.
Freedom of speech campaigners are claiming victory as the House of Lords is expected to back changes removing anachronistic laws which have criminalised libel for more than 700 years.
The changes, which will be debated as part of the
controversial coroners and justice bill, repeal laws dating back to 1275 and allow extremely serious libel and sedition to be prosecuted in criminal courts. The laws have long been regarded as an impediment to freedom of speech and an anomaly in
the UK, which has encouraged countries with repressive regimes not to conduct prosecutions for libel.
Agnes Callamard, executive director of campaign group Article 19, said: This will send a very strong and clear signal globally that
democracies do not have criminal defamation laws. The government's admission that the law, which has been widely recognised as hampering freedom of press and political dissent, must change comes after increasing concern about clampdowns in other
countries, including many states in Europe and the Commonwealth.
These common law offences are anachronistic and their continuing existence, albeit seldom used, has been cited by other countries as justification for the retention of similar
laws, which have been actively used to restrict media freedom, a Ministry of Justice spokesperson said: The UK is committed to encouraging other countries to recognise and respect freedom of expression and the media must take the lead in
abolishing these out-of-date offences.
There is also a debate about whether to extend changes to the law on blasphemous libel to Northern Ireland, where offensive remarks about the Christian church remain an offence.
There is now a
grotesque situation in Ireland, said Liberal Democrat peer Lord Lester QC. In the Republic of Ireland, there has been a rebirth of the offence of blasphemous libel for domestic constitution reasons, and in Northern Ireland we have not yet managed
to get rid of it. God no more needs to be protected by criminal law in Northern Ireland than in Great Britain.
The government denied it was considering extending the repeal of blasphemous libel to Northern Ireland. The government believes
that the Northern Ireland assembly is the best forum to consider this area of law as it relates to Northern Ireland, the Ministry of Justice said.
It is a measure of how deeply the Trafigura fiasco affected the public psyche that much of the anger (and humour) directed at footballer John Terry online on Twitter and other social networks concerned his legal representatives Schillings' use of a
superinjunction, rather than his alleged extra-curricular activities.
It all started with the reporting of an injunction, supposedly obtained by former Royal Bank of Scotland chief executive, preventing him being identified as a banker . A mildly interesting story, made marginally more so by the fact that the
injunction had been breached by an MP during a Parliamentary debate.
But there is more to the story. As bloggers Anna Raccoon, Charon QC and Obiter J have reported, on a Parliamentary debate on Thursday the same Liberal Democrat MP, John Hemming,
revealed the details of a number of other (what he called) hyper injunctions. The common feature was that courts had ordered not only that the parties to litigation were to be prevented from revealing details of their cases to the public, but also
to their MPs.
Behold, then, a new innovation: what Hemming calls the hyper-injunction. This double-secret form of super-injunction, unveiled only recently by the MP, specifically bars a person from discussing something with members of Parliament,
journalists and lawyers , except for his own defence lawyers.
Its effectiveness is clearly demonstrated by the fact that it's not new at all: the hyper-injunction Hemmings referred to -- concerning allegations to do with ships' drinking water
tanks being coated with toxic paint -- dated from 2006, and we're only just hearing about it.
Ways have to be found to guarantee privacy and provide protection from malicious allegations, but these oppressive court orders are not the answer
The revelation by the Liberal Democrat MP John Hemming of a new breed of hyperinjunction ,
which forbids the recipient talking about it to MPs, is one of the most disturbing developments in the contest between legitimate privacy and the need for open justice.
In an age when accusations can be made anonymously on the internet, ways have
to be found to guarantee privacy and provide protection from malicious allegations, but these oppressive court orders are not the answer. As the Times said, there are at least 30 orders blocking publicity in high-profile cases, as well as a new type of
order -- the hyperinjunction -- which affects parliamentary privilege by preventing discussion between an MP and his constituent.
A Twitter user named InjuctionSuper has stirred things up with some celebrities who he claims to have obtained super-injunctions to prevent publication of details of their private lives.
The press say that some of these claims are not true but of
course they cannot say which these are nor can they confirm any false names.
The use of super injunctions seems ever present in the news these days and seems to be causing much disquiet. A report by a committee set up by the Master of the Rolls -
the most senior civil law judge at the Court of Appeal - will report on their use later this month.
BBC legal correspondent Clive Coleman said it will have to grapple with the issue of publication online.
If it doesn't the super or
secret-injunction may no longer be an effective tool in the administration of justice, he said.
Media lawyer Charlotte Harris, of Mishcon de Reya, said the stories subject to super-injunctions were quite often cases of nasty blackmail .
She said: You should be allowed to end a relationship with somebody, whether you are married or not, without having that person say 'right, I'm going to go to the paper, I'm going to destroy your life, I'm going to tell everybody every intimate thing
A lawyer who acts for newspapers suggested the viral effect of postings on social media websites could make a mockery of super-injunctions. Niri Shan, head of media law at Taylor Wessing, added: You can get an
allegation that is made but before you know... it goes to potentially millions of people. Although people don't take these allegations as seriously as newspapers they certainly have a detrimental effect.
The first injunction specifically banning the publication of information on Facebook and Twitter was issued yesterday.
The far-reaching order was issued in the Court of Protection in the case of a mother who wants to withdraw life support from her
brain-damaged daughter. It prevents the identification of the woman, her relatives and those caring for her.
Legal experts said they had never seen an injunction which specifically barred publication of information on social networking websites.
John Hemming, the Liberal Democrat MP who is campaigning against the excessive use of gagging orders, said: They are like King Canute, the tide will keep coming in no matter what they do. The problem the courts have is Twitter is not registered
in the UK and is therefore outside British jurisdiction. What they are saying is unrealistic. This is about life and death and I don't think it's acceptable, there is a real issue with transparency. The Court of Protection operates in a bubble -- it's
out of touch with the real world.
Kenneth Clarke, the Justice Secretary, has indicated that a new privacy law will be introduced after warning that the public is not entitled to know about the sex lives of footballers [and politicians?] .
Clarke said there were areas of privacy where Britons could expect to be protected, but added he was uneasy about the use of super-injunctions, which prevent the public from knowing if a gagging order has even been obtained.
The Daily Telegraph disclosed that more than 80 injunctions have been taken out by well-known people, including Premier League footballers, actors and an MP.
Lord Neuberger, the Master of the Rolls, will this week present an official report to the
Government on injunctions, which is expected to recommend more public scrutiny of their use.
Plainly, I believe in the freedom of the press and freedom of speech in this country, even
when sometimes it is exercised provocatively ...HOWEVER... I also think there are areas of privacy where an individual is entitled to have it protected.
It is probably right to say that Parliament passing a
privacy act might well be the best way of resolving it. But we need to get somewhat nearer to a consensus, and one needs to know exactly how we are going to strike this balance.
Lord Neuberger's soon to be published review is expected to warn spate of restrictive privacy orders pose a grave threat to tradition of open justice Superinjunctions should only be granted in exceptional circumstances because of the threat they pose to
open justice, a report by one of Britain's most senior judges is expected to warn.
Pre-notification ought to be given to third parties, such as the media, of court hearings where celebrities or others are applying for restrictive orders protecting
their anonymity, the study headed by the master of the rolls, Lord Neuberger, is also expected to recommend.
Another issue the report may address is the question of how far parliamentary privilege protects the media in reporting speeches by MPs or
peers that may be in contempt of court orders.
Whether Neuberger's report will add to the argument that the government needs to pass a privacy law is not clear.
The culture secretary, Jeremy Hunt, has ruled it out following a meeting with
the justice secretary, Ken Clarke.
The long-awaited survey of superinjunctions and privacy orders, which runs to around 100 pages, will provide the government with clearer evidence about the need for a privacy law. Established last year in the
wake of the Trafigura affair and the row over the England footballer John Terry's private life, the Neuberger committee of experts was asked to examine the use of injunctions which bind the press and so-called 'superinjunctions' .
Legal proceedings are being taken by a professional footballer against Twitter for allegedly publishing information covered by a super-injunction.
The player, identified only by the initials CTB, is also known to be taking action against the Sun
newspaper and ex-Big Brother star Imogen Thomas.
Papers lodged in the High Court are against Twitter and persons unknown . They request disclosure of Twitter users said to be behind the publication of confidential information. Legal fight
The order requires Twitter to disclose the requested information within seven days - or within the appropriate time required by the law in California, where Twitter has its headquarters.
Media lawyer Nick Lockett said the legal action against
Twitter may not have much effect. What will have to be established is that Twitter was subject to the jurisdiction of the court, he said. While UK courts claim worldwide jurisdiction this has often proved hard to enforce. In the case of the US,
said Lockett, the situation was complicated by the Communications Decency Act which grants immunity from prosecution for providers of interactive computer services under certain circumstances. Lawyers acting for CTB may struggle to prove that
Twitter does not deserve this immunity, said Lockett.
Premier League footballer's attempts to gag discussion of his extramarital affair with a Big Brother contestant appeared doomed to failure after the total of messages about the star posted on Twitter hit 30,000.
And the number of tweets about the
affair has rocketed over the course of the last 48 hours following his decision to launch a second legal action aimed at trying to prevent disclosure of the relationship on Twitter.
Within 24 hours of the player launching the new challenge, more
than 12,000 tweets about him and the relationship appeared on the site. Miss Thomas was named alongside the footballer in more than 6,000. Last night tweets about the affair were being posted at a rate of 900 every hour.
Update: Putting people in prison just to hide sexual peccadilloes
A journalist on one of Britain's most respected newspapers -- who also appears on a widely-viewed BBC programme -- could face a jail sentence after naming on Twitter a Premier League footballer who had taken out a privacy injunction.
the first case of its kind, lawyers for the soccer star have persuaded a High Court judge to ask Attorney General Dominic Grieve QC to consider a criminal prosecution against the writer for breaching a privacy injunction. If Grieve decides to issue
contempt of court proceedings, the individual faces a prison sentence of up to two years.
The unprecedented legal action shows the extreme lengths to which public figure can go to prevent the exposure of adulterous affairs and misbehaviour.
The attempt to use super-injunctions to gag the media in the internet age has reached new levels of absurdity.
It was reported that a High Court judge had referred an unidentified journalist to the Attorney General, Dominic Grieve, to consider a
criminal prosecution for breaching a privacy injunction with a tweet about another footballer. The move could potentially mean that criminal proceedings would be brought against 30,000 people who have broken one or other of the contested injunctions by
tweeting in recent days the identities of those involved.
However, sources close to the Attorney General suggested he would be highly unlikely to authorise criminal proceedings against anyone who had breached either injunction on Twitter. They
said that he would be unlikely to want to become embroiled in an increasingly farcical situation and suggested that if the footballers' lawyers wanted redress against tweeters, they should do it through the civil courts.
Yet on the same day when
the increasingly farcical attempts of lawyers to restrict the flow of information about their clients unravelled further, a Scottish newspaper, the Sunday Herald, devoted its front page to a clearly recognisable photo of one of the footballers involved.
Below the picture, a caption read: Everyone knows that this is the footballer accused of using the courts to keep allegations of a sexual affair secret. But we weren't supposed to tell you that...
The Scottish paper's editor said he printed
the picture because he did not think it was bound by the English legal injunction. However, the paper did not name the footballer in its two-page spread on privacy, and Scottish lawyers questioned whether it would be able to defend its decision in court.
However Campbell Deane, of the leading Scottish libel firm Bannatyne Kirkwood France & Co, said he believed the paper was covered by the injunction and could now be referred to the Lord Advocate, who could bring charges against the paper's
editor and its owners.
But Reuters reports that Scotland's most senior politician Alex Salmond said on Monday that the Herald should not be pursued by the English courts for publishing the player's photo: It looks to me like the English law,
English injunctions look increasingly impractical in the modern world, It seems that everyone is out of step except the English courts.
In a later development Wikipedia has now added an item about the injunction identifying the
The extent of court privacy injunctions in British public life and the media can be revealed today after an analysis by The Independent found that more than 333 gagging orders protecting the identities of celebrities, children and
private individuals have been granted in the past five years.
As the ramifications of the naming in Parliament of footballer Ryan Giggs continued to fuel the debate over injunctions, MPs renewed calls for the Ministry
of Justice to begin collating figures for the number of privacy orders being granted in Britain's courts after a senior judge warned that the absence of reliable data was undermining public confidence in the administration of justice.
Twitter said it was prepared to hand over information identifying tens of thousands of people who have used the social-networking website to break privacy injunctions.
A senior executive from Twitter has admitted that the website would turn over
information to authorities if it was legally required to do so.
Experts had previously assumed that people who breached gagging orders on Twitter were protected from legal reprisals because the website is outside the jurisdiction of British
Ryan Giggs, the Premiership footballer, last week started legal proceedings against Twitter and persons unknown after more than 70,000 users revealed that he had obtained an injunction to hide an extra-marital affair.
Wang, Twitter's head of European operations, said that the website would notify users in advance so they could fight the application in the court before Twitter handed over the information. He said:
a responsibility, not to defend that user but to protect that user's right to defend him or herself. If we're legally required to turn over user information, to the extent that we can, we want to notify the user involved, let them know and let them
exercise their rights under their own jurisdiction. That's not to say that they will ultimately prevail, that's not to say that law enforcement doesn't get the information they need, but what it does do is take that process into the court of law and let
it play out there.
Another twitter user has published details of more purported celebrity gagging orders.
A newly created Twitter account posted details of 13 alleged injunctions early yesterday morning, directing users to a website for further detailed information.
After attracting more than 500 followers within the first 10 hours of publication, the tweets were removed.
Mark Stephens, a media lawyer, said the courts could instruct the Attorney General or solicitors to begin proceedings, at public expense,
to find out who the person behind the breach was. They would then be subject to a contempt of court action: One of the things about this is that it is a cynical snub of the judiciary but a lot of this information has been available for people using
the internet for quite some time.
But Sara Mansoori, a media barrister at Matrix chambers, which represents claimants and defendants including some mentioned in the latest alleged Twitter breach, said a judge had recently rebuffed solicitors'
calls for the court to start contempt proceedings -- instead telling them they could apply to the Attorney General to intervene: The [breaches] are starting to be a head-on collision with the courts, she said. Courts are implementing laws by
Parliament. We have moved away from privacy laws to contempt laws, we are in a very serious situation [but] we have got Parliament, through comments through the Prime Minister saying he is concerned about the courts, and John Hemming [the MP] saying they
are unhappy with the way the courts are applying the law.
The author of the latest alleged Twitter breach used the anonymous mask -- employed by groups and individuals seeking to challenge institutions and whistle blow wrongdoings.
People who use Twitter to breach privacy injunctions may face government legal action.
Attorney General Dominic Grieve said that individuals could be prosecuted for contempt of court for publishing sensitive material. Enforcement was normally a
matter for whoever had taken out a privacy order. But Grieve told the BBC he would take action himself if he thought it necessary to uphold the rule of law.
In an interview with Radio 4's Law in Action programme, the attorney general said
that individuals who used Twitter or other internet sites to undermine the rule of law could face the consequences of their actions. He was referring to court powers to fine or even imprison people who deliberately break court rulings.
explained that enforcement of orders made in civil cases was normally a matter for whoever had taken them out. A claimant could go to court and seek to have people punished if they had broken the terms of an injunction. But when asked if he should
bring contempt proceedings himself for breach of a privacy order, Grieve said he would take action if he thought it necessary.
Law in Action is broadcast on BBC Radio 4 on Tuesday 7 June at 1600 BST and Thursday 9 June at 2000 BST, Or via iPlayer
Even those of us who care little or nothing about the sex lives of celebrities should care about the latest farcical attempt by the English courts to use an injunction to gag a tabloid newspaper.
The case sets a potentially
dangerous new standard in allowing judges to screw over press freedom and dictate what the public should be allowed to know. The judicial campaign to impose a privacy law by the back door is the big issue we should all be concerned with, behind the
squalid details of celebrity scandal.
Update: Google forced to censor links to the not very secret celebrity scandal
Google has removed links to articles about the
celebrity couple at the centre of a injunction in response to legal demands. Searches for the names of either person return notices at the bottom of the page saying results have been removed. Links are still available when accessing Google from outside
the UK (or maybe EU).
Google's removal notices in this case are of the form normally used for taking down links to copyrighted information and are different to the messages Google posts when it censors links under EU right to be forgotten rules.
The Daily Mail reported that an online privacy firm claiming to be acting on behalf of the couple had complained about more than 150 links.
Offsite Article: Google not censoring links to the not very secret celebrity scandal
A top celebrity has taken out a so-called super injunction to prevent the press from reporting a story on their personal and professional life .
The extreme gagging order prevents any information which could lead to the identity of the
celebrity involved, including their sex, the reason they are famous and information relating to the story.
Officially, the legal measure - which is called an anonymised privacy injunction - has been used by a large number of celebrities including
footballers such as Ryan Giggs and John Terry to cover up sexual infidelity.
The latest anonymous celebrity secured a super injunction against the Sunday Times in the High Court.