Further written evidence from Alan Rusbridger,
the Guardian
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.[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.[2]
September 2009
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.
The Results
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 three 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 £30 million to the victims, rather than
face a High Court trial.
1 See Appendix 1. Back
2
See Appendix 2. Back
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