Twitter, Trafigura, and the future of press injunctions

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Goodness knows what it was like from the editors chair. But from where I sat watching the live twitter feed of #trafigura on Tuesday was utterly compelling. First there was the detective work – people trying to figure out, based on the sparse information in the Guardian’s initial article about the absurdly wide-ranging ‘super-injunction’ – which Parliamentary question the paper had been prevented from talking about. The key was ‘Carter Ruck’. Searching through Parliamentary written and oral questions a few bright sparks alighted on Paul Farrelly’s question:

‘”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.”

They then tweeted about this to see if other people agreed it must be the question, and within hours confirmed with one another this must be it.

From there twitterers started looking for the Minton Report. Again, thanks to the net this was available on Wikileaks – a site unthreatened by injunctions or super-injunctions because its ‘information is distributed across many jurisdictions, organizations and individuals’. As it claims on the site, ‘Once a document is leaked it is essentially impossible to censor’.

Then social media and the power of the ‘link economy’ kicked in. Hundreds, then thousands, of people started posting 140 character messages on Twitter expressing outrage at the injunction and pointing people to the Parliamentary question, articles about Trafigura, and the Minton Report.

Within hours #trafigura had become the number one trending topic in Twitter. In other words more people were tweeting about #trafigura than about anything else in the world. At one point four of the top five trending topics on Twitter were about this story (the fifth was ‘Google Wave’).

Then, shortly after 1pm, the editor of the Guardian posted a tweet saying Carter Ruck had backed down. They would not try to prolong the injunction, and the Guardian was free to mention the parliamentary question.

Much whooping and cheering on Twitter. Stephen Fry, comedian and uber twitterer, tweeted, “Carter-Ruck caves in! Hurrah! Trafigura will deny it had anything to do with Twitter, but we know don’t we?”.

But was it Twitter wot won it? And if so, what does this mean for press freedom and the future of injunctions?

Well, if it wasn’t Twitter then one can safely say it was not the other mainstream media outlets. Almost all other newspapers, and the BBC, remained silent during the course of the morning, prevented from publishing by the ‘super injunction’. The Telegraph broke the silence in the late morning but only to report that ‘Trafigura tops list of Twitter trending topics’. There was no mention in the article of the Guardian, Paul Farrelly, or the injunction.

Newspapers are still relatively easy targets for lawyers. They are institutions, they have their own lawyers. They have editors and journalists who can be sent to jail if they break the law.

Twitterers are a far less easy target. They (or rather ‘we’, since I twitter and was twittering on Tuesday morning) are mostly individuals, not institutions or outlets. To stop twitterers Carter Ruck would have to take on thousands of individuals – many of whom are tweeting pseudonymously. To use a military analogy, it’s like an army fighting a guerilla rather than a conventional war.

Yet will these guerilla twitterers have any substantive impact on the law? Well, if they can do another #trafigura with the next injunction then injunctions may be seen to be increasingly ineffective. But this is unlikely given the Guardian took a risk publishing as much information as it did about this super injunction – and probably only got away with it (if indeed it has got away with it) because the injunction appeared to prevent the paper from reporting on Parliament – a privilege held for over 200 years, since John Wilkes’ famous battle in the 18th century (Carter Ruck subsequently denied they tried to gag Parliamentary reporting). Whether or not a Parliamentary gag was intended, one would certainly hope MPs will now put an end to the so-called ‘super-injunction’.

Most injunctions are not about issues that may be debated in Parliament, and therefore do not raise issues of parliamentary privilege. The Guardian perhaps hopes it can use the Trafigura case as a lever to crank open the whole question of injunctions. Maybe. But Private Eye has been making a lot of noise about injunctions for a long while, yet there use appears to be increasing rather than decreasing.

Moreover, there is an understandable public interest in some injunctions. When a media storm grew around the 13 year old ‘baby father’ in February the family court stepped in and issued an injunction to prevent harm to the children involved in the story.

For commercial injunctions, history has shown that people cling most closely to things they are about to lose. So it is likely to be with these injunctions – at least 12 of which have already been served this year against the Guardian (presumably more against other outlets, though we don’t really know, since they are – by law – secret). Over time, and following similar #trafigura incidents, such injunctions should become less and less effective. But the Carter Rucks of this world will keep doggedly serving them up until it costs their clients more than the benefits of buying a temporary silence.

Still, the twitterati should take heart. This was a victory for press freedom, and a victory won by the power of collective voices.

Written by Martin Moore

October 16th, 2009 at 5:02 pm

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