Further written evidence from Alan Rusbridger, the Guardian (PS 131)
This submission is in two separate parts:
Part 1 - Secret injunctions
When Ian Hislop of Private Eye and I testified to this committee on 5 May 2009, I said that we had not yet been hit with the kind of chilling privacy injunction which most concerned him, and which he called "censorship by judicial process". Unfortunately, I spoke too soon!
The Guardian has now been hit with the same kind of injunction, because we tried to act as responsible journalists. A document we obtained detailed what appeared to be apparent wrongdoing by a big corporation. No sooner had our reporter phoned up to ask questions about its genuineness, than he was hauled into court and forbidden to publish a word about the document's content on the grounds that it was confidential.
Far worse still was that the judge then accepted the company's request that the very fact of the existence of the injunction itself be kept secret. The company was to be referred to as 'X' in the court papers. The judge was told that we should be muzzled from publishing the fact that the company had obtained an injunction against us, because otherwise we might write a story criticizing the corporation for 'muzzling the press'. The committee will see the irony in this kind of reasoning.
The order says: We "must not disclose to any other person...the information that the Applicants have obtained an injunction and/or the existence of these proceedings and/or the Applicants' interest in these proceedings."
The injunction prevented us from publishing information which we believed was important to make known. We would have to spend a great deal of time and money to overturn what seems like a casual piece of censorship by the courts. Ironically, the document in question has been published in full abroad. We wrote a recent leader about this. The process of casually granting these secrecy orders appears to be spreading. One of the first cases before the new Supreme Court appears to involve an alleged Al Qaida financier who has obtained an order to be known only by initials, although he has been named already by the US Treasury. Likewise with control orders, deploying secret evidence against those subject to them, this spreading virus of anonymity seems very undesirable.
Part 2 - The activities of firms such as Carter-Ruck
Along with others of the European media and the BBC, we have recently been subject to what we regard as a prolonged campaign of legal harassment by Carter-Ruck on behalf of London-based oil traders, Trafigura.
Trafigura arranged the illegal dumping of 500 tons of highly toxic oil waste in the West African country of Cote d'Ivoire. Thousands of the population of Abidjan, the capital, subsequently became ill and, after a bitterly fought law suit, Trafigura has now been forced to pay a degree of compensation to the victims.
Carter-Ruck, like such other firms as Schillings, are trying to carve out for themselves a slice of the lucrative market known as 'reputation management'. This is not about the perfectly proper job of helping people or organisations gain legal redress when they have been mistreated by the press.
It is a pitch to work with PR firms to pressurize and intimidate journalists in advance on behalf of big business. It exploits the oppressive nature and the frightening expense of British libel laws.
Carter-Ruck's boasts on their website are appended [APPENDIX 1].
After the toxic waste dumping in 2006, Trafigura embarked on what was essentially a cover story. They used Carter-Ruck and PR specialists Bell Pottinger, working in concert to enforce their version on the media.
The cover story was that Trafigura used a tanker for normal 'floating storage' of gasoline. They had then, they claimed, discharged the routine tank-washing 'slops', which were harmless, to a disposal company, and had no responsibility whatever for the subsequent disaster.
In fact, Trafigura had deliberately used a primitive chemical process to make cheap contaminated gasoline more saleable, and knew the resultant toxic waste was impossible to dispose of legally in Europe.
The Guardian experienced an intimidatory approach repeatedly in the Trafigura case. Other journalists at BBC Newsnight, the Norwegian state broadcaster NRK and the Dutch newspaper Volkskrant, told us of identical threats. The BBC eventually received a libel writ. NRK were the subject of a formal complaint - eventually rejected - to the Norwegian press ethics body.
A history of Carter-Ruck's behaviour in respect of the Guardian is appended [APPENDIX 2]
APPENDIX 1: Extracts from Carter-Ruck website
APPENDIX 2: Extract from a chronology of Carter-Ruck dealings with the Guardian on behalf of their client Trafigura
APPENDIX 1: Extracts from Carter-Ruck website
Carter-Ruck has unrivalled expertise in advising a wide range of individuals and organisations who find themselves subject to adverse or intrusive media coverage....
Where consulted before publication under its MediaAlert service, Carter-Ruck is often able to persuade a publisher or broadcaster to change its intended story or even to decide not to publish it at all. If this does not prove possible then the option of obtaining an injunction to prevent publication will be considered. The firm has an excellent record over recent years of securing injunctions prohibiting publication, particularly of private information. We are often able to secure injunctions in a matter of hours. We also have considerable experience of working (often alongside PR agencies) for blue chip corporations and other clients facing sustained and hostile media interest.
The best time to act over an intrusive, unfair or inaccurate piece of journalism is before publication... We can, and frequently do, have a significant impact on behalf of our clients on what material, if any, is published.
How MediaAlert Works
If you, or your clients, are about to be the subject of intrusive, unfair or inaccurate media coverage, contact us.
We will advise on a strategy and we may recommend that we should speak to the staff lawyer at the relevant publisher or broadcaster.
All television broadcasters and most national newspapers have staff lawyers. Our lawyers know most of them well and are experienced in dealing with them. We find them receptive to our approach. It is in their interests that stories should be accurate and potential disputes avoided where possible. We will advise the staff lawyer of your interest and, if appropriate, outline your concerns regarding the proposed story.
This means a staff lawyer with knowledge of your concerns will consider the proposed article or broadcast for libel, breach of privacy and other legal and regulatory purposes. This vetting process would otherwise probably be done by a freelance night lawyer (who may be relatively young and inexperienced) with no equivalent knowledge.
This may lead to important changes to the story from your point of view and, sometimes, a decision not to publish the story at all.
Often this is all that is required to nip the matter in the bud.
What Happens Next?
We can write to threaten legal action. In appropriate cases we can seek an injunction from the court at very short notice at any time of the day or night. Television and newspaper staff lawyers know these options are in the background. They know our reputation. They know our experience in dealing with pre-publication issues. That's why they listen to what we say and will take account of it when deciding whether, and in what form, to clear stories for publication or broadcast.
APPENDIX 2 - Extract from a chronology of Carter-Ruck dealings with the Guardian on behalf of their client Trafigura
On 27 June 2008, Bell Pottinger sent a threatening message to the Guardian. They had previously sent similar threats and complaints to AP, whose agency dispatch had been published on-line by the Guardian. The message ended:
"Please note that in view of the gravity of these matters and of the allegations which have been published, I am copying Trafigura's solicitors, Carter-Ruck, into this email."
The letter demanded changes to the Guardian's website to include this information:
"The Probo Koala ... left Amsterdam with the full knowledge and clear approval of the Dutch authorities." It also stated that the disposal company in Amsterdam had asked for extra fees "without any credible justification" and that "ship's slops are commonly produced within the oil industry. To label Trafigura's slops as 'toxic waste' in no way accurately reflects their true composition."
On 16 September 2008, Trafigura posted a statement on their website claiming:
"Trafigura is in no way responsible for the sickness suffered by people in Abidjan ... The discharge of slops from cargo vessels is a routine procedure that is undertaken all over the world."
The company knew this was a misleading and false statement.
On 22 September 2008, the Guardian's East Africa correspondent, Xan Rice, asked Trafigura some questions, in view of the then impending trial of local Ivoirian waste contractors.
Trafigura refused to answer, a refusal coupled with another pointed referral to libel solicitors. Bell Pottinger wrote: "I am copying this email to Carter-Ruck".
Xan Rice's article was not published by the Guardian.
The Ivoirian trial convicted local individuals for toxic dumping, Trafigura subsequently abandoned some of their lines of defence in the English litigation they originally claimed they had no duty of care, and could not have foreseen what the local dumpers might do. Trafigura now agreed instead, to pay anyone who could prove the toxic waste had made them ill. They continued to deny publicly that such a thing was possible.
Xan Rice again asked some factual questions. On 14 November 2008, Bell Pottinger responded "Please note that I am copying this correspondence to Carter-Ruck and to the Guardian's legal department". They added: "Any suggestion, even implicit, that Trafigura ... should have stood trial in Ivory Coast would be completely unfounded and libellous ... We insist that you refer in detail to the contents of the attached summary".
They claimed to be sueing for libel the senior partner of Leigh Day who was bringing the English lawsuit. They added that further Leigh Day statements "are the subject of a complaint in Malicious Falsehood"[sic]. In fact, the libel proceedings against Martyn Day had been stayed, and no malicious falsehood proceedings had been - or were ever - issued.
A closely-typed six-page statement was attached. In it the company claimed to have "independent expert evidence" of the non-toxicity of the waste, but refused to disclose it. Trafigura repeated the false claim that the waste was merely "a mixture of gasoline, water and caustic soda".
No Guardian article, once again, was published.
On 3 December 2008, less than 3 weeks later, Trafigura formally admitted to the High Court the true composition of the waste in its document "Likely chemical composition of the slops", [detailed above].
On 5 December 2008, Trafigura formally admitted their waste came from Merox-style chemical processing attempts, and not from routine tank-rinsing.
On 29 April 2009, Carter-Ruck wrote to a Dutch paper: "Trafigura has been obliged to engage my firm to bring complaints against Volkskrant ... It is indeed the case that we have on Trafigura's behalf, written to a number of other media outlets around the world in respect of their coverage of this matter". Bell Pottinger also confirmed contact with journalists who published or broadcast stories that did not accurately reflect Trafigura's position, but added: "We completely disagree with your description of Trafigura's involvement in an 'aggressive media campaign'."
On 13 May 2009, Bell Pottinger, in concert with Carter-Ruck, issued a statement to the BBC repeating two assertions known to be false.
They said the Leigh Day statement "is currently the subject of a malicious falsehood complaint made by Trafigura". They also claimed once more: "The Probo Koala's slops were a mixture of gasoline, water and caustic soda".
On 13 May 2009, Carter-Ruck wrote to the Guardian demanding the paper not "publish any reference" to witness-nobbling allegations, although they know these had already been the subject of a public statement by solicitor Martyn Day; the subject of a separate disclosure published by the legal correspondent of the Times; and the subject of a publicly-available court injunction banning further witness contact by Trafigura until trial. Carter-Ruck added that "so much as a reference to these allegations" would be "wholly improper".
On 15 May 2009, Carter-Ruck issued a press release under its own letterhead, not Trafigura's, claiming that High Court libel proceedings had been issued against the BBC for "wildly inaccurate and libellous", "one-sided", "misleading", "sensationalist and inaccurate" publications.
On 22 May 2009, Carter Ruck told the Guardian: "It is untrue that the slops caused or could have caused the numerous deaths and serious injuries ... Trafigura cannot be expected to tolerate unbalanced and inaccurate reporting of this nature. Accordingly, Trafigura requires the Guardian to ... remove these articles from its website forthwith; and ... publish a statement by Trafigura".
The Guardian declined to remove its articles, but agreed to publish the statement. This said: "The fact is that according to independent analyses that Trafigura has seen of the chemical composition of the slops, it is simply not possible that this material could have led to the deaths and widespread injuries alleged. Similarly, it is not possible that hydrogen sulphide was released from the slops as alleged by the Guardian. Trafigtura will present these independent analyses in the High Court in Aututmn 2009."
On 17 September 2009, the Guardian published documents on its front page detailing a "massive cover-up" by Trafigura.
On 29 September 2009, Trafigura announced it would pay £30m to the victims, rather than face a High Court trial.