Trafigura and the Minton Report: 'Super injunction' was lifted after the horse had bolted

On Saturday the Guardian finally reported details of the Minton Report, a scientific study commissioned by giant oil trading firm Trafigura, which described the chemical components of waste dumped in the Ivory Coast in 2006 and their potentially toxic effects.

Trafigura had attempted to prevent the Guardian revealing the leaked report, which can now be downloaded as a PDF at this link, with a so-called 'super injunction' order, imposed in early September.

But those who wanted to read the Minton Report had probably already read it, as the horse had bolted: the suppressed draft report - which, Trafigura has claimed, shows possible outcomes of waste dumping, rather than a study of exactly what happened in Abidjan - was available from the whistle-blowing site Wikileaks.org and on the Norwegian Broadcasting Corporation's (NRK) website, which ignored legal threats being made elsewhere.

Although the report was readily available elsewhere, the British press kept very quiet, until a parliamentary question from MP Paul Farrelly last week allowed them to make reference to its existence - though not without a fight.

Even Trafigura's lawyers Carter-Ruck acknowledged the role of external publication in its statement on the lifting of the original injunction [Trafigura statements available at this link]: "[F]ollowing widespread publication of the document overseas (particularly on websites), and in light of certain wholly misleading media coverage of the matter in this country, Trafigura agrees that there is no longer any purpose in the injunction remaining in place. Therefore the injunction has been discharged."

The Minton injunction was just one of the many secret 'super injunctions' currently silencing media in the UK. As Wikileaks claimed last week,  the Guardian has revealed that it had been served with 10 of these orders since January 2009.

"In 2008, the paper was served with six. In 2007, five. Haven't heard of these? Of course not, these are secret gag orders; the UK press has given up counting regular injunctions," Wikileaks editor Julian Assange commented.

Major media organisations obeyed the order made against the Guardian. Wikileaks reported that the Times was issued with the same injunction as the Guardian.  

But even after the lifting of the injunction, media outlets still didn't provide or link to the report: Wikileaks reported via Twitter on Sunday that of 293 press articles on the suppressed Minton report into toxic dumping only 11 told the public where they could get it.

While the Norwegian Broadcasting Corporation (NRK) had also been warned with the Guardian's secret injunction – the full text of which is available on its site - it ignored it.

"Lawyers made purported legal threats to both Norwegian and Dutch media, on the basis of the injunction," David Leigh, head of investigations at the Guardian told Journalism.co.uk.

Leigh criticised the lawyers' attempt to intimidate journalists 'by making threats which they must know to be false'. "These threats had no legal substance outside the UK jurisdiction. They must have known that," he said.

British media obedience
Why was the British media so compliant with Trafigura's lawyers, Carter-Ruck, even though the injunction hadn't been issued to all news organisations?

Jon Wessel-Aas, the Norwegian lawyer who advises NRK wrote a comment piece on this site suggesting that a little civil disobedience could have served the UK well: "NRK - who along with the BBC and the Guardian - has been covering [the Trafigura story] extensively over the past year, felt safe to disregard the same injunction from the High Court of Justice, which effectively gagged The Guardian. NRK uploaded all the 'forbidden' documents, including the court order, to its website.

"If British media wishes to operate under a regime which is more compatible with modern European standards of press freedom, is it not about time that one chooses a suitable case, where the injunction-system is challenged (...) Isn't it time to focus more on the judiciary's contempt of basic civil liberties, rather than on potential contempt of court from the media?"

Case study: Norwegian Broadcasting Corporation, NRK
Synnøve Bakke and Kjersti Knudssøn both journalists for NRK produced a 50-minute documentary called 'Dirty Cargo' in 2008, which investigated Trafigura's handling of its waste.

• Links to full NRK coverage at this link

Bakke is sympathetic to the British press' reaction to the injunction: "I do understand the reluctance to go up against a firm that had a turnover of $73 billion last year. It dwarfs most media companies' budgets. But I think it is important for large British media outlets to challenge the system."
 
Furthermore, Norway has a more lenient legal system, Bakke adds: "Legal rules in Norway do not stop us from publishing information in the same way you do in Britain. Anything we obtain as journalists we can publish according to normal journalistic principles."
 
Wessel-Aas tells Journalism.co.uk that only 10 years ago, the Norwegian press would have behaved in much the same way as the British press has done so far.

Wessel-Aas successfully fought a case for NRK's editor-in-chief in 2005 and believes it would be a useful example for the British media to follow NRK's lead.

His in-depth explanation of the legal intricacies is reproduced in full below.

Jon Wessel-Aas
"Respecting court orders is, of course, essential in a society which wants to uphold the Rule of Law, in which the authority of the judiciary is an inherent element. That is an obvious starting point.

"In that perspective you can't call the British press' attitude controversial. However, when the state authorities, be it public offices or the judiciary, use their powers to place serious constraints on the public's basic civil liberties - in this case the freedom of information in public debate - there comes a point where it can be legitimate, and even a legally protected right under the European Convention on Human Rights, to exercise one's rights in spite of a court order.

"An example from the case law of the European Court of Human Rights is Goodwin vs the United Kingdom, where a British journalist refused to comply with a British court order demanding him to reveal the identity of his source, and was subsequently fined for doing so. The European Court of Human Rights found that both the court order demanding that he revealed his source and the fine imposed for not complying (an act of civil disobedience on his part) were violations of his right to freedom of expression.

"This is the perspective of the Norwegian press, and it was tested to the full, with success, by my client, NRK, a few years ago. When NRK faced with a so-called 'secret injunction', in principle similar to that in the Trafigura case in Britain, it chose to disregard it, rather than wait for the outcome of an appeal process. NRK did this because the injunction was regarded as an obvious violation of the ECHR Article 10 and because it was paramount to the public debate in question that the information contained in the relevant TV documentary was conveyed to the public.

"In the end the Supreme Court of Norway found the original injunction to be in violation of NRK's right to freedom of expression and the public's right to information. The state prosecutor subsequently withdrew an indictment against NRK's chief editor for having violated the injunction, based largely on the reasoning that under the circumstances, a conviction was no longer realistic.

"Since that case, it is practically impossible to succeed for applicants seeking injunctions against the media prior to publishing. Those who have tried, have failed. Only 10 years ago, I think the Norwegian press behaved much in the same way as the British press has done so far. We needed that one, suitable case to challenge and subsequently modify the injunction system.
 
"Any injunction which places constraints on the free flow of information in a public debate, is a serious problem in a democratic society.

"Injunctions which are made in a secret process and in which even the contents of the injunction are held secret, are, of course, particularly problematic in a democratic society.

"Not only because they withhold the respective piece of information from the relevant public debate, but they also deny the public at large its right to participate in the debate on how the courts strike the balance between the right to freedom of expression and the opposing interests in the particular case. The last aspect is also an essential element of a democratic society.

"Of course, in some situations, where the information in question involves the life of the nation as such, or extremely intimate information about an individual's private life which obviously could not have any public interest, such secret injunctions are the only way to protect the information from becoming public.

"In my opinion, the legal situation in Norway only allows for secret injunctions, or injunctions at all, in those types of cases. In my view, case law on ECHR also indicates that there is very little scope for the type of injunction we've seen in the Trafigura case. The case Sunday Times vs the United Kingdom (no 1) from the European Court of Human Rights is one of several indications to that effect."

Have you got an example or case study to add? Contact judith or laura [at] journalism.co.uk. You can find coverage of the Trafigura-Guardian story on the Editors' Blog at this link.

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