You're not going to be able to allow comments on this article...
...you just know that mischievous posters are going to want to link to some well known whistleblower sites.
So was it Twitter what won it? Yesterday, in the wake of a flurry of Twitter and blogosphere outrage, the 'super-injunction' banning the Guardian (and, we should note, everybody else) from reporting details of a parliamentary question effectively collapsed. "A few tweets and freedom of speech is restored," the Graun itself said …
Wouldn't it be great if the lawyers concerned who have no doubt earned a lot of money from all this activity should use their expertise to get maximum recompense for the poor victims of the dumping of waste in an African country and who are being given probably less than any one of the lawyers earns in 10 minutes for their real pains. Whether the lawyers clients were involved in the illegal dumping or not is immaterial but it seems that poor people are not as worthy in the eyes of the law or lawyers rather as rich companies. The largest single category of MP is, I understand, ex lawyers - says a lot.
I'll grant you we'll keep a pretty close eye on comments on this one. But you give me an opportunity to point out that the law on linking to whistleblowing sites is by no means settled. M'learned friends with a pecuniary interest in the suppression of information have an interest in it being at least possible that linking to something that breaches somebody's copyright (or whatever) is in itself a breach of copyright and/or an inducement to breach copyright.
But t'aint necessarily so, and it's never been tested in a UK court. That said, I'd rather not be doing the testing myself, so keep it down people - don't go trying to start anything for a laugh.
Isn't the point of this that Paul Farrelly has found an elegant hack of the legal system which allows these super-injunctions to be made public knowledge by the simple act of referring to them in parliament? That Carter-Ruck fell into the trap of trying to apply the super-injunction to prevent the Guardian reporting the parliamentary question simply drew attention to the whole thing, but the alternative would have seen the Guardian report the existence of the super-injunction anyway. Hence the secrecy of super-injunctions can be broken if you have a friendly MP who's prepared to mention it's existence in parliament.
1. They have the slimmest hope that maybe they'll find a judge who's having a Really Bad Wig Day and get it through, and;
2. They've used their Lawyerly Jedi Mind Control tactics to persuade their clients that it's a good use of their clients' (temporarily) plentiful supply of cash.
Carter-*uck are famous for these super injunctions. The worst bit about them is that they even manage to ban the discussion of the injunction itself. So it's impossible for the press to even mention that an injunction has been brought without being held in contempt.
You would think these injunctions require a formal hearing in front of a panel of judges. They don't.
That our legal system allows this to happen is truly terrifying.
How on earth can a secret super-injunction ban -everyone- from linking to or mentioning the contents of the injunction, if by it's very nature it's kept a secret and only revealed to paper(s) that foolishly declares their hand before going into print? I as a private citizen certainly wasn't aware I was unable under penalty of contempt of court to blog about a particular MP's question. What would have happened if I had done? And why on earth didn't the Guardian just publish the question anyway, and be damned (or not, as they felt they had a qualified privilege defense). That would have done a lot more to defend freedom of speech, than bawwwing about being unable to publish anything, then proclaiming Twitter as their saviour.
but sometimes the fourth estate exceeds what is permissible, and such things as injunctions and super-injunctions become necessary. I don't approve of anything that inhibits free speech, but neither do I approve of the sometime baseless assaults and innuendos that grace some of our beloved organs.
One way to find out would be to post summaries from random stories from whistleblower sites on
national newspaper feedback pages. The posts which are silently removed without so much as 'this was an irrelevant comment' marker are the ones that have a super injunction slapped on them
Seen it happen.
The injunction in question didn't specifically forbid the Guardian from reporting on the parliamentary question. The injunction forbade the Guardian from reporting anything about the Minton report, and it forbade the Guardian from reporting that it had been injuncted.
The Minton report is an internal report, commissioned by Trafigura, into the dumping of waste in Ivory Coast. The report was leaked to Wikileaks.org.
Paul Farrelly's question mentioned the Minton report and the injunction. And so Carter-Ruck sent a letter to the Guardian claiming that reporting on Farrelly's question would constitute a breach of the earlier injunction and thus a contempt of court.
The judge, when he/she granted the injunction, didn't know anything about the parliamentary question as it hadn't been asked yet. Nor even mooted.
Paul Farrelly was effectively trying to use parliamentary privilege to draw attention to this disgraceful and ludicrously broad injunction. The Guardian hoped that his question would allow it to effectively reveal to its readers that it had been injuncted from publishing details about the Minton report (available to us all on wikileaks.org).
Carter-ruck, in sending the letter to the Guardian, have shot themselves in the foot. But presumably, next time, they will be careful to get an injunction forbidding the Guardian from reporting on letters received from Carter-Ruck.
As this article points out, the twitterati have not solved the problem. They have merely alerted Carter-Ruck to a loophole that I am sure they will be careful to plug next time.
I'm not a great enthusiast for the current regime at the Guardian, but this time they did precisely what they should have done. Publish and be damned would likely have been extremely expensive for the paper, given that judges get just as uppity about contempt as MPs get about privilege. What the paper did do instead was to get its lawyers onto overturning or amending the injunction. It quite probably would have succeeded in this, and the other party folding an hour or so before the hearing might suggest that they thought it was going to succeed. Plus the Graun got shedloads of positive publicity by screaming about being gagged.
Total result, IMO. Very well played.
As for what would have happened to you... Probably nothing, given that nothing is likely to happen to anybody now. But if the cards had fallen differently, if you'd published while being unaware that you were covered by the injunction - and could prove that you'd been unaware - then nothing would have happened to you. Apart from having to prove it, that is. And considering the amount of screaming there was about it, it seems to me it'd be a difficult one to prove.
Yes, the injunction would have been quashed without Twitter/blogs/Stephen Fry/whatever. But nobody would have heard about it, other than Private Eye readers.
And the point is the bad publicity storm that has been stirred up, to the cost of Trafigura and Carter-Ruck; this will have two effects;
1. Carter-Ruck and other solicitors will think twice before applying for injunctions, about the potential publicity 'Streisand Effect'
2. Trafigura and other business and private clients will think twice before employing Carter-Fuck. And that can ONLY be a good thing. :)
That's the difficult part, right? You can't prove a negative. Prove that you are not a terrorist, paedophile, jew, wifebeater, etc., etc.
I didn't even know such injunctions were possible in the first place. Is that a remainder of Oliver Cromwell et al. ?
This injunction was meaningless - you can't be sued for reporting what's in Hansard, if the Guardian had published the question and who asked it, the resulting case would have been thrown out of court.
Yet by claiming they had been gagged, they invited bloggers and tweeters to generate a storm of massive free publicity for the Guardian. I did wonder at the time if the whole thing was an elaborate hoax. The (very positive) end result has been that the company involved - Trafigura - who are accused of dumping toxic waste in Sierra Leone by the Guardian are now much more widely known. A good result I think, since stories like these often have to compete with the usual Jordan / Brittney gossip column trash.
Wish I'd thought of that one.
We shouldn't forget that Barclays and their gagging-law solicitors Freshfields are in this picture, e.g. in Paul Farrelly's question, it's not just Trafigura and the well-known Carter-Ruck.
http://news.bbc.co.uk/1/hi/uk_politics/8304483.stm (Farrelly question in full)
Take a squint at http://www.rsf.org/en-classement794-2008.html
Press freedom rankings UK=23, USA=36. [Lower numbers are better]
Where is the evidence that the UK needs the First Amendment?
Where is the evidence it is doing USA any good?
The First Amendment is a nice little smoke screen. Tell the people they have it and they don't question what they're being served.
It would help you lot out a lot... but it's not as an invincible shield against abuse as you may think. There are still such things as gag orders in the U.S., and during the recent Bush years the Patriot Act's use to gag political debate (e.g., the Librarian Gag Order) was quite draconian. The good side to the First Amendment is that in the end, such abuses were found to be unconstitutional and struck down. That still didn't mean that they weren't effective for quite some time first.
"I didn't even know such injunctions were possible in the first place."
That's probably because the press aren't allowed to refer to specific injunctions, so it's very difficult for them to even mention their general existence. They used to be extremely rare, but it's only in the last decade or so that they have become common practice. I suspect this is because every time they work Carter-Fuck and their ilk become keener to use them. If they start to fail then they will become less popular. The best way for the press to defeat them is to publish anyway.
What would happen if one of these injunctions was served late one evening* and instead of pulling the story the editor broadcast it to every editor in the country? If the following morning every paper, every TV station, every radio station and every website ran the story what exactly would the courts do? Jail every editor in the country? And if everybody working on every news network stood up and said "I knew about the injunction and I was involved in publishing the story and I am, indeed, Spartacus" what then? Jail them too? I think not. And if the courts knew this was likely to happen every time would judges be so eager to grant these injunctions? I think not.
Unfortunately it's unlikely to happen that way. Journalists used to be hard nosed bastards who would stand up for what they believed. These days the vast majority are time servers who care more about their pension than the truth. Find me an old fashioned, principled journo working on a major UK newspaper. Go on, try.
*It makes it hard to fight them if you can't actually get hold of the necessary people. Often the main purpose of these injunctions is to buy time.
By Tom Smith
"So who was the judge who granted this injunction? Or is that information not in the public domain either?"
According to the Guardian:
"The Guardian is still forbidden by the terms of the existing injunction, granted by vacation duty judge, Mr Justice Maddison, to give further information about the Minton report, or its contents."
So far this year the paper has been served with twelve of these so-called "super injunctions", details of which cannot be reported.
And our MPs are too busy whining about the injustice of having to pay back their fiddled expenses to be concerned about trivial matters like free speech and suppression of information that should be in the public domain.
Please vote for your local Raving Loony candidate. Honestly, you won't be able to tell the difference.
> Journalists used to be hard nosed bastards who would stand up for what they believed.
No, you're confusing truth with the movies. In fiction, the romantic idea of a principled, hard-nosed journo (or member of any other profession for that matter) prepared to go to the wall for his/her beliefs in commonplace. In reality most people will buckle down and think of their careers and their pensions.
There are, of course, shining exceptions to this rule - but I'm not one of them, and I bet you aren't either.
This is, to my mind at least, a far more important issue. The order, while it stood, did indeed prevent the Graun, or any newspaper, from quoting Hansard on this particular parliamentary proceeding. Hansard is the definitive public record of parliamentary proceedings, the keyword there being "public".
Fine, I'll accept that the judge concerned wasn't aware of the question at the time, but for Carter-Fuck to threaten contempt of court proceedings for reporting parliamentary proceedings *which are already on the definitive public record* is gross abuse of the right of appearance. For the record, Contempt or Parliament trumps Contempt of Court every time.
Carter-Fuck and the partner responsible, and Trafigura's board and legal head should be dragged to the Bar of the House of Commons, in chains if required, to account for themselves.
Reg, can we have a "I'm so fucking furious my head's exploding" icon please, or a green ink/font option?
1. Paper gets hold of document showing a firm in a rather unflattering light
2. Firm gets a super secret injunction against the paper.
3. unsigned long int people_who know_about_the_injunction = 1
4. while N < population of the known universe
6. someone blabs and tells, in secret, party N /* someone always blabs */
7. Firm to party N: "oy, we've got a super secret injunction about this" /* shows injunction */
8. party N says, good lord, so you have, I couldn't possibly have known, sorry old boy
9. people_who know_about_the_injunction++
It's all rather reminiscent of the USSR, but we can see that a super secret injunction cannot work, by virtue of it's secrecy: see comment on line 6 and line 8.
Still, the dear old grauniad showed them what lentils are made of.
BTW, can we get the CMS to stop stripping space, the indentation's been shot to buggery.
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