Over the last few days, the power of the masses on the Internet has manifested itself, when users felt their rights to know what their elected representatives in parliament were saying, were being infringed.
On 12 October 2009, The Guardian published an article reporting a matter they could not report in language that resembles a poem:
“Today’s published Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.
The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.
The only fact the Guardian can report is that the case involves the London solicitors Carter-Ruck, who specialise in suing the media for clients, who include individuals or global corporations.”
(my emphasis)
Within hours, everyone in the country knew that this related to law firm Carter Ruck obtaining a ’super-injunction’ on behalf of Trafigura following the leaking of a document known as the ‘Minton Report’.
I have absolutely no basis for judging what actually happened, and I hope that there will be an investigation into the matter to bring out the full facts. However, what I am particularly interested in, is the way in which the Internet was so critical in frustrating an injunction.
One of the key reasons that the news spread so quickly, was the re-tweeting that took place on Twitter. Very soon the twitter hashtags ‘#carterruck’ and ‘#trafigura’ became so popular they appeared as a ‘trending’ topic. Trendmap produce this in a graphical form based on geography:

Trendmap of Twitter traffic showing #trafigura and #carterruck
The Guardian were very clever in publishing a cryptic article of this kind, as it was bound to lead its readers to find the information, and since it was not possible to serve an injunction on the whole population, the genie was out of the bag. The fact they agreed (according to Carter Ruck’s statement) to make a ’substantial contribution’ to Trafigura’s legal costs’ does however suggest the story may not quite be as simple. I can sort of understand why Trafigura might decide the costs of defending an action (potentially against the inability to recover costs even if they win) might mean a settlement is desirable, regardless of actual liability. There is then the question of whether parliamentary privilege was used as a way to circumvent an injunction.
What is clear is most people will now believe that Trafigura are bad guys and The Guardian are defenders of truth. Time will tell if this will be the case.
The morals…
Trafigura’s position is that this document is legally privileged and as an interim document, incomplete. I have to have some sympathy with that position, but in today’s society, this raises interesting questions, of how can we balance with the democratic ‘right to know’ in a free society whilst maintaining fairness at trial. We’ve seen actions in the past for infringement of privacy, something I certainly believe strongly in.
A parliamentary committee a couple of months or so ago, was looking into the effects of privacy laws that were effectively being formed in a court as a result of case law, rather than a full debate in parliament. As part of that process, Alan Rusbridger and Ian Hislop, editors of The Guardian and Private Eye respectively, gave testimony on the effects of such laws on their decision to run controversial stories relating to large companies or rich individuals. Their argument focusses on the large legal costs involved in defending such publication.
Should newspapers, magazines or websites be able to publish a story without being sure they are in the right? I would hope that laws exist to protect victimised parties and to dissuade the press (or anyone else for that matter) from publishing a story if they aren’t confident about their facts. This of course does not mean that the cost of legal action should be a factor, but more so damages.
Finding a balance between the concept of privacy and fairness against freedom of speech is a difficult one.
The Internet, through websites such as Wikileaks and the power of crowds through services like twitter, has changed the landscape and the law needs to recognise this. Getting an injunction to stop publication in the UK won’t prevent it circulating on the Internet, so we need to revise our thinking.
Leaks will take place in all organisations, and is a breach of trust between the organisation and its employees or other partners. The question should be asked, is there a public interest that is so important that it should override the interest of the organisation? This is not merely something that should be left up to the individual who wants to leak information, but should be a test which can be judged as objectively as possible, ignoring political or moral views that an individual may hold. In this case, it will come down to the final decision, who was right? If Trafigura can prove that actually the waste dumped in the Ivory Coast was not the cause of some of the major suggested illness, then it would suggest the leak was improper, but could the person who leaked it even know?
These are all difficult questions, and I have a suspicion we will never find the answers. What I can say with absolute certainty, is that once something is on the open Internet, it is too late to try and remove it. At this point, damage limitation is the only strategy.
If we are going to look at establishing a privacy law, we need to consider not only the rights for privacy, but also the effectiveness of enforcing such rights. The Internet and the power of the masses has stirred up society, but it does not mean we can forget the responsibility that goes with that freedom.