British Censorship Chills US Reporting

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.

Comments (27)

1. I've found Europe and Canada's approaches to freedom of speech to be both shocking and disappointing.

   Posted by Citizen_Carrier at 10/17/2009 @ 08:40am

2. I've found Europe and Canada's approaches to freedom of speech to be both shocking and disappointing.

   Posted by Citizen_Carrier at 10/17/2009 @ 08:40am

3. Maria M.: "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."

   I find it MORE chilling that our own media, mostly the Legacy & internet Media, don't feel any obligation to consider the "risks" of publishing unsubstantiated slanders of conservatives.....most recently of Rush, and just as memorably, smearing John McCain wrt trumped up "affair" with a lobbyist pre-election.

   Posted by Happy at 10/17/2009 @ 09:33am

4. Well, there are no "legal" risks media outlets face when they produce stories containing libel, such as was done to Rush using unsubstantiated and ultimately untrue "quotes".

   Heard yesterday that they tracked down the IP address of a person or persons altering the Wikipedia entries for prominent conservative political figures. Patterson Belknap Webb & Tyler LLP, a New York law firm with various leftwing and politically correct enterprises.

   All that remains is for the targets of such libel, conservative or liberal or whoever, to sue for monetary compensation.

   For example, could a struggling New York Times laugh off even a $5 million dollar libel lawsuit these days? That and swallow the legal fees as well?

   I'm thinking not. A few burnt fingers and bloody noses would soon set things to right across the board.

   Posted by Citizen_Carrier at 10/17/2009 @ 10:00am

5. Well, there are no "legal" risks media outlets face when they produce stories containing libel, such as was done to Rush using unsubstantiated and ultimately untrue "quotes".

   Heard yesterday that they tracked down the IP address of a person or persons altering the Wikipedia entries for prominent conservative political figures. Patterson Belknap Webb & Tyler LLP, a New York law firm with various leftwing and politically correct enterprises.

   All that remains is for the targets of such libel, conservative or liberal or whoever, to sue for monetary compensation.

   For example, could a struggling New York Times laugh off even a $5 million dollar libel lawsuit these days? That and swallow the legal fees as well?

   I'm thinking not. A few burnt fingers and bloody noses would soon set things to right across the board.

   Posted by Citizen_Carrier at 10/17/2009 @ 10:00am

6. oil is poison.

   THE SUN! IT'S HOT!

   Posted by frosty zoom at 10/17/2009 @ 2:40pm

7. That's the thing about the freedom of speech, it's a right. It cannot be given or taken away. A government can make laws protecting it, but that does not change it's fundamental nature. That said, the U.S. has it's own problems with gag orders, but obviously no law which bans speaking of the gag order. There is only one reason to have that law, and it is to hide corruption, as the author stated. There is no reason whatsoever that the people of Britain cannot remove it. It's a simple matter of making it happen. How it's done is up to them. The problem is, many Brits have equally draconian dispositions regarding the right to rule, even over themselves. The ongoing infatuation with the royal family and entitlement is a well known national defect. The resistance to demanding change in government seems to flow from that same type of thought.

   Posted by Milhaus at 10/17/2009 @ 2:46pm

8. Couldn't agree more. Britain is the most conservative country on the planet and they really haven't adjusted to the fact that their hundreds of years of being the Empire are over. "It can't happen here'" is the usual British response to anything they don't want to deal with. Making changes to their ancient constitutional laws would be akin to getting conservative American Christians to agree on which of their many re-written Bible 'translations' is best.

   Posted by DejaVu at 10/17/2009 @ 3:03pm

9. Britain is the most conservative country on the planet

   Posted by DejaVu at 10/17/2009 @ 3:03pm

   what?!?

   Posted by frosty zoom at 10/17/2009 @ 3:09pm

10. Britain is hardly conservative anymore.

    If you think so, I shudder to think at what you'd consider a "liberal" country to be.

    Cambodia under the Khymer Rouge?

    Posted by Citizen_Carrier at 10/17/2009 @ 3:54pm

11. Britain is hardly conservative anymore.

    If you think so, I shudder to think at what you'd consider a "liberal" country to be.

    Cambodia under the Khymer Rouge?

    Posted by Citizen_Carrier at 10/17/2009 @ 3:54pm

12. I'm British and this whole fiasco has been a national embarrassment. Now I'm ashamed to see that it's also been an international embarrassment. How dare these people threaten freedom of speech thousands of miles away from London? You will doubtless hear more about Carter Ruck in future. I'm pleased to report that did at least look pretty uncomfortable when a tiny number of us turned up outside their offices on Thursday lunchtime. There'll be more next time around... : http://www.inthenews.co.uk/comment/news/politics/-let-s-gag-carter-ruck- -$1334392.htm

    Posted by RichardCameronWilson at 10/17/2009 @ 4:21pm

13. I think that when talking about British conservatism California would be a good analogy for Americans. On the face of things it seems to be very liberal, with progressive laws and such, when in fact we routinely elect very conservative politicians. The power structure in California has a very right-wing bent that is often hard to see. The progressive legislation that comes around is very often the product of referendums driven from very liberal population centers, not from the people with wealth and privilege who have access to the levers of power.

    Posted by Milhaus at 10/17/2009 @ 7:37pm

14. I think that when talking about British conservatism California would be a good analogy for Americans. On the face of things it seems to be very liberal, with progressive laws and such, when in fact we routinely elect very conservative politicians. The power structure in California has a very right-wing bent that is often hard to see. The progressive legislation that comes around is very often the product of referendums driven from very liberal population centers, not from the people with wealth and privilege who have access to the levers of power.

    Posted by Milhaus at 10/17/2009 @ 7:37pm

    We've had a socialist state legislature for over 20 years. I don't know what other California you are talking about.

    Posted by antisocialist at 10/17/2009 @ 9:16pm

15. 'I've found Europe and Canada's approaches to freedom of speech to be both shocking and disappointing.'

    Well then, it's a good thing the Dutch broke ranks with all those other horrible Europeans and helped to break this story, isn't it, "Citizen_Carrier"?

    Of course, Greenpeace helped, too. I assume you're a contributor? I am, by the way, and never with more pride than at times like now, when I read that once again, this indefatigable international watchdog has tweaked the nose of another multinational environmental menace.

    Trafigura and other multinationals will fight like rogue elephants to keep us in the dark about what they do, and our feeble First Amendment will do little to stop them until something like it becomes international. Until then, thank God for leaks, above all for Wikileaks!

    It really is scary when the BBC gets muzzled. Quite a lot of what we know in the free world comes from the BBC. There aren't many other news organizations that do as much investigating of the truth that is out there. When the BBC sneezes, we all get a cold.

    Posted by JakobFabian at 10/17/2009 @ 9:24pm

16. There are also times when the British court system does the right thing. Check out the following article by Glenn Greenwald:

    "British High Court rejects U.S./British cover-up of torture evidence"

    at "salon.com/opinions/greenwald."

    Posted by JakobFabian at 10/17/2009 @ 9:58pm

17. imho the law firm becomes guilty under British law of hampering an official investigation - not a pretty charge in today's Britain, ask the mother of the kid who shot Rhys-Jones

    Posted by A_Pax_On_Your_Houses at 10/18/2009 @ 08:18am

18. 'I've found Europe and Canada's approaches to freedom of speech to be both shocking and disappointing.'

    Well then, it's a good thing the Dutch broke ranks with all those other horrible Europeans and helped to break this story, isn't it, "Citizen_Carrier"?

    Posted by JakobFabian at 10/17/2009 @ 9:24pm

    Not what I was getting at, exactly. For example, the Dutch you praise here as "breaking ranks" earlier this year ordered the prosecution of Geert Wilders. His crime? Producing a film titled "Fitna", which is critical of radical Islam.

    Yep, the Dutch prosecute people for writing, saying, or producing what we would consider legal, protected political speech.

    The French have prosecuted and fined Brigette Bardot at least 5 times for being critical of Islam, particularly their ritual animal slaughtering methods. She's an animal rights activist.

    In Europe and Canada you can be prosecuted for political speech. And as they've made clear time and again, it doesn't matter if what you say is actually the TRUTH. You violate their speech code, you get arrested and charged.

    Posted by Citizen_Carrier at 10/18/2009 @ 10:19am

19. 'I've found Europe and Canada's approaches to freedom of speech to be both shocking and disappointing.'

    Well then, it's a good thing the Dutch broke ranks with all those other horrible Europeans and helped to break this story, isn't it, "Citizen_Carrier"?

    Posted by JakobFabian at 10/17/2009 @ 9:24pm

    Not what I was getting at, exactly. For example, the Dutch you praise here as "breaking ranks" earlier this year ordered the prosecution of Geert Wilders. His crime? Producing a film titled "Fitna", which is critical of radical Islam.

    Yep, the Dutch prosecute people for writing, saying, or producing what we would consider legal, protected political speech.

    The French have prosecuted and fined Brigette Bardot at least 5 times for being critical of Islam, particularly their ritual animal slaughtering methods. She's an animal rights activist.

    In Europe and Canada you can be prosecuted for political speech. And as they've made clear time and again, it doesn't matter if what you say is actually the TRUTH. You violate their speech code, you get arrested and charged.

    Posted by Citizen_Carrier at 10/18/2009 @ 10:19am

20. The French have prosecuted and fined Brigette Bardot at least 5 times for being critical of Islam, particularly their ritual animal slaughtering methods. She's an animal rights activist.

    Posted by Citizen_Carrier at 10/18/2009 @ 10:19am

    Animal advocates decry feedlot conditions

    By Betsy Blaney | ASSOCIATED PRESS

    Tuesday, March 17, 2009

    Animal health advocates want improvements made at a West Texas horse feedlot where they say live horses are feeding in pens as carcasses decompose in the open and that some horses eat hay from atop compost piles. State environmental investigators have not been able to verify the allegations in four trips to the Frontier Meat Co. just outside Morton in the past year. All of the trips have been without warnings or notification, said Terry Clawson, a spokesman for the Texas Commission of Environmental Quality.

    The operation, which feeds horses and buffalo, is owned by Fort Worth-based Beltex Corp. The company has been cited for failure to have permits to operate and failure to have a solid waste storage permit, which pertains to the carcasses not being composted correctly, documents show.

    ••

    Federal law requires that mammals be stunned prior to slaughter (exempting kosher and halal). Common methods of stunning:

    Captive bolt stunning

    A "pistol" is set against the animal's head and a metal rod is thrust into the brain.Shooting a struggling animal is difficult, and the rod often misses its mark.16

    Electrical stunning

    Current produces a grand mal seizure; then the throat is cut. According to industry consultant Temple Grandin, PhD, "Insufficient amperage can cause an animal to be paralyzed without losing sensibility."17

    Posted by frosty zoom at 10/18/2009 @ 10:54am

21. The French have prosecuted and fined Brigette Bardot at least 5 times for being critical of Islam, particularly their ritual animal slaughtering methods. She's an animal rights activist.

    Posted by Citizen_Carrier at 10/18/2009 @ 10:19am

    She told me that the first time she visited a kosher slaughter house, she heard screaming cattle from a half kilometer away and wondered what was different in this place. What she saw was shocking. I quote from her book, Thinking in Pictures, and Other Reports Prom My Life With Autism: "I will never forget having nightmares after visiting the now defunct Spencer Foods plant in Spencer, Iowa fifteen years ago. Employees wearing football helmets attached a nose tong to the nose of a writhing beast suspended by a chain wrapped around one back leg. Each terrified animal was forced with an electric prod to run into a small stall which had a slick floor on a forty-five degree angle. This caused the animal to slip and fall so that workers could attach the chain to its rear leg [in order to raise it into the air].

    stupid humans.

    Posted by frosty zoom at 10/18/2009 @ 10:56am

22. In Europe and Canada you can be prosecuted for political speech. And as they've made clear time and again, it doesn't matter if what you say is actually the TRUTH. You violate their speech code, you get arrested and charged.

    Posted by Citizen_Carrier at 10/18/2009 @ 10:19am

    if you think speech is "freer" in the u.s., you're truly deluded.

    isn't that right, nsa?

    Posted by frosty zoom at 10/18/2009 @ 10:59am

23. Totally totally Orwell!

    Posted by gpreichel at 10/18/2009 @ 4:42pm

24. if you think speech is "freer" in the u.s., you're truly deluded.

    isn't that right, nsa?

    Posted by frosty zoom at 10/18/2009 @ 10:59am

    Well, if you'd be so kind as to show me the last time a citizen was prosecuted by the U.S. government for saying or writing something (espionage excluded, of course), then I will concede the point.

    For that is what "freedom of speech" means. You cannot be prosecuted, jailed, or fined by the U.S. government for political speech.

    Were that the case, then the tyrannical Bush would've jailed a lot of people in these here parts.

    And yet here we all are, saying and writing whatever it is we want. In Europe and Canada, they've been put on notice that you can be prosecuted if you are critical of another person's behavior if they happen to belong to a different race or religion than you.

    And your citations of American slaughter practices are supposed to demonstrate something about this conversation? Was somebody involved arrested or jailed because they were critical of them? If not, then why did you bring it up?

    Posted by Citizen_Carrier at 10/18/2009 @ 10:25pm

25. #

    Totally totally Orwell!

    Posted by gpreichel at 10/18/2009 @ 4:42pm | ignore this person | warn this person

    Maybe the reason that the British can always be counted on for great state sponsored social engineering conspiracy stories is because it's not far from the truth. You make art about what you know.

    Posted by Milhaus at 10/18/2009 @ 11:38pm

26. It seems to me this isn't about animal rights or which country has freedom of speech. It's about the way that big business and government collude. Elsewhere Tony Blair has been described as someone who appears to be center-left, but is in fact pro business as usual, which is why he's being considered for EU president. The same could be said of Obama.

    I think that you will find that US regulatory agencies and big businesses regularly collude to dump poison into the public domain. They use whatever laws or loopholes suit their purposes, and lobbyists are employed to ensure that these laws and loopholes are safeguarded.

    As long as people are driven by short-term gain (the investment mentality) this type of practice will continue, especially if the amounts of money involved are large. It is the mentality driving climate change and a host of other problems, and in my worst nightmare it is hard-wired into the human brain.

    Posted by mikecope at 10/19/2009 @ 01:04am

27. Our problem, "Citizen_Carrier," is not that we have censorship, but that we have mass-produced, semi-true crap flung at us 24 hours a day, seven days a week, by the corporate media, whose motto is, "if it sells, it must be true."

    The truth isn't censored, but where else in the world can you find thirty percent of the population quaking in fear at a recently defunded community organization like ACORN, when so many other recipients of government funding commit so many other, much more serious crimes and misdemeanors? On FOX NEWS, the truth gets buried in a crap-storm of semi-truth, innuendo, and rumor.

    And, of course, sometimes the truth simply isn't reported. There are official government secrets that we aren't supposed to know, and there are official government lies that we are supposed to accept, such as "enhanced interrogation is not torture" and "government spying by trolling e-mails without a warrant is legal." Quite a few journalists now regard their task not as juxtaposing government jargon with the facts, but in accepting it at face value and then moving on. (Jon Stewart recently did a great sketch mocking CNN's overuse of the weasely phrase "Let's move on" as an excuse not to challenge the truth of a corporate or government pundit's last utterance.)

    That's how we do it in these United States.

    Although I praise Europe for its stronger public media and well-informed citizenry, I do not otherwise consider myself qualified to comment on the quality of European journalism. Suffice it to say that Geert Wilders is still a free man. The Supreme Court of the Netherlands has yet to consider his case. And his work on Islam, though not an outright lie, is a one-sided hatchet job. Judaism or Christianity, judged in the same way, would look just as bad.

    Posted by JakobFabian at 10/19/2009 @ 06:42am