They say that when Wall Street sneezes, London catches a cold. But it seems that when London puts a freeze on facts, the chill can spread just as well the other way.
What I'm about to tell you was censored in Britain until yesterday night because of a "super-injunction" won for the oil-trading company Trafigura by the famously aggressive media law firm Carter-Ruck. Super-injunctions, for those unfamiliar with Britain's baroque libel and media law, are gagging orders which cannot themselves be mentioned, thus allowing corporations and oligarchs to carry on their business untainted by public suspicion. They have become increasingly popular with both British and foreign litigants who have something to hide--and with lawyers who make fortunes squeezing foreign libel cases into the British courts. Such is the chilling effect of these dubious legal instruments that even The Nation, First Amendment champion par excellence, felt obliged to hold an earlier version of this post for two and a half days while its lawyers considered the risks of publication. It's only because Trafigura has lifted the injunction in Britain after an outcry on the internet, in the press and in the House of Commons that you are reading this now.
In August 2006, Trafigura dumped a shipload of toxic waste on Africa's Ivory Coast. Some 100,000 Ivorians sought medical help for breathing problems, vomiting and skin eruptions; according to a UN report, 15 people died. Trafigura maintained repeatedly that the material discharged was harmless. A few months later a British lawyer started legal proceedings on behalf of the victims; the oil company paid £100 million to the Ivorian government to pay for removing the waste but continued to deny liability. The legal case dragged on.
Fast forward to 2009, when reporters from the BBC and the Guardian newspaper assembled evidence pointing to a company cover-up. Carter-Ruck launched a libel suit against the BBC, and obtained a super-injunction preventing the Guardian from mentioning an expert report commissioned by Trafigura in September 2006. Now here's the part that was "secret" until yesterday: The report confirmed the "likely" presence of compounds "capable of causing severe health effects," including "headaches, breathing difficulties...unconsciousness and death," in the caustic tank washings dumped around Abidjan. In other words, Trafigura's own scientific consultants had clearly suggested that the "slops" were potentially dangerous--but the company continued to insist that they were not. The document, known as the Minton report, has been available for some time on the internet from the open government and anti-corruption group Wikileaks and on the website of Greenpeace in the Netherlands, which is pursuing legal action against Trafigura for manslaughter and grievous bodily harm. But until yesterday no description of its contents could be published in Britain.
Fortunately the Guardian had another set of documents up its sleeve: a set of internal emails between Trafigura executives written before the dumping, in which they consider how to dispose of the toxic "shit," banned in Europe, left in the ship's hold by a cheap consignment of petrol. On September 16 the paper publicized the emails in a front-page story; the next day Trafigura offered compensation to 31,000 victims, while still denying any liability.
This week, the farce reached a new pitch of absurdity when Carter-Ruck told the Guardian that it could not report a Member of Parliament's question in the House of Commons referring to the super-injunction. Even in Britain, where we have no First Amendment and no constitution, the proceedings of parliament are public and protected both by the Bill of Rights of 1689 and by centuries of hard-won legal precedent. A front-page story duly appeared in the paper announcing the censorship without mentioning its content, as well as the editor's intention to seek an urgent hearing. Since parliamentary questions are publicly listed in advance it was the work of a moment for bloggers to put two and Trafigura together; the twittersphere went wild. Carter-Ruck hastily agreed to vary its injunction to allow the coverage of parliament--and, in one last desperate attempt to keep the information under wraps, went on to warn the Speaker of the House of Commons that MPs could not debate the Minton report or the law firm's behavior because the matter was sub judice.
Having thus shot itself spectacularly in the foot, Carter-Ruck has now withdrawn the injunction and switched to damage-control mode: Trafigura now claims that the Minton report was merely preliminary and has been superseded, though it has not said by what. But the tale of Trafigura is by no means the only story censored in this way. Perhaps this tragicomedy will hasten the demise of Britain's regressive libel laws, or at least the lifting of the many other secret super-injunctions currently in force. Meanwhile, if the First Amendment is to keep all its own teeth, Congress should hurry up and pass the Free Speech Protection Act, which will keep US corporations from burying their dirty laundry in Britain's libel courts.