Tuesday, 13 October 2009

The Trafigura Question

When you try to ban something, it quickly pops up all over the internet. Everyone knows that. A few weeks ago, for example, Tate Modern was forced to remove a sexually provocative photograph of the prepubescent Brooke Shields from an exhibition following a police investigation. The picture itself was unconscionable, and the adult Shields has tried unsuccessfully to suppress it; it was also in fairly clear breach of the law. The gallery, in short, had no choice; one wonders why they ever thought it appropriate to include the image. Notoriety, I suppose: the hardcore delights of Jeff Koons' Made in Heaven series, prominently displayed in the show, scarcely merit even the Mail's outrage in this debauched generation. Yet it's unlikely that the presence in the exhibition of ironic and important-question-raising kiddie-porn would have attracted hordes of perverts to the Tate, or constituted any sort of danger to children or to public morals. The fuss, on the other hand, ensured that the image (easily viewable via Google Images) was swiftly brought to the attention of anyone who might be turned on by it.

It's known as the Streisand effect, after an incident in 2003 in which the American legend failed to suppress an aerial photograph of her house - though, as Martin Robbins points out, it should really be called the Herostratus effect. (Herostratus burned down a temple in an attempt to become famous; the authorities tried to suppress his name, whereupon he became famous as the Arsonist whose Name they Tried to Ban.) Recent examples covered on this blog include the Internet Watch Foundation's temporary ban on a Wikipedia image of the Scorpions' "Virgin Killer" album (another naked child, though much less offensive than the Shields photo) and Tom Cruise's attempts to suppress an eccentric lecture about Scientology. And then of course there's the British Chiropractic Association's libel action against Simon Singh - back in court tomorrow - which has led to the dissemination far and wide of Singh's claim that (all together now...) "this organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

But they never learn.

By coincidence, two textbook examples of this blowback effect have come to court over the past day. The first, which has had Twitter all fired up, involves injunctions taken out against the Guardian by solicitors Carter-Ruck and which were referred to a Parliamentary question. The newspaper was injuncted when it tried to reveal details of two alleged scandals, one involving the financial arrangements of Barclays, the other a suppressed report into toxic dumping off the coast of Africa by the London-based oil company Trafigura. The details are now all over the place (the suppressed report is over at Wikileaks (pdf); basically it concludes that the company's actions caused ill health among many local people).

Both cases will be familiar to readers of Private Eye, one of the few UK publications with balls, and are in any event too complex to summarise here. The point is that by preventing the Guardian from reporting a Parliamentary question (even one posed by a friendly MP who happens to be a former Observer journalist) the injunction seemed to threaten the principle of Parliamentary Privilege, and thus the public's right to know about the doings of their elected representatives. That at least is how the Guardian editor Alan Rusbridger spun it, first in a Twitter posting on Monday night and then in a report in the newspaper itself. The Guardian's report was so ambiguously worded that most people assumed that Carter-Ruck had sought a specific new injunction to prevent the newspaper from reporting Parliament. There's no evidence that this is the case.

Jack of Kent, a splendid fellow but one with an occasionally hyperbolic turn of phrase, thought it "potentially the most significant constitutional case of our generation". Certainly the argument has a strangely 18th century flavour to it, harking back to John Wilkes's battles to win the right to publish Parliamentary debates. (In his case, it was the MPs who were claiming Parliamentary Privilege as a reason for blocking the public's right to know, as some of them were still doing a few months ago in respect of their expenses - but that's historical irony for you.) In response to the removal of the injunction this lunchtime, Labour loudmouth Denis MacShane rushed onto CIF to complain that the move showed "the growing contempt of the legal-adminstrative pillars of the state for parliamentary democracy."

I disagree. Farrelly's question was a blatant attempt to circumvent the terms of the injunction. By reprinting his question, the Guardian repeats the very allegations which it is injuncted from disclosing. Effectively, this renders the injunction null and void. Carter-Ruck were merely doing their job of fighting for their client, and the opprobrium they incur from censored journalists is misplaced. In any case, whether or not a matter can be reported in the media ought not to depend on whether or not a news organisation has a pet MP.

You may think - the Guardian certainly thinks, as do I - that the use of injunctions to gag the press in matters of public importance has become scandalous. As last week's Private Eye noted, "the new breed of super-injunction is far more oppressive than the traditional court order... It usually includes an order that... nobody can report that the order has been granted, or who has applied for it. Even the identities of the judge and the newspaper remain secret, and anyone who even hints at them may be held in contempt of court." Such orders are becoming commonplace, and it's not just international men of mystery (such as the late Khalid Bin Mahfouz) or multinational corporations who have resorted to them. The Eye report quotes the Guardian's legal editor as saying that his paper had been served with at least 12 secret injunctions this year. It also mentions Andrew Marr, who used a secret injunction to suppress details about his adulterous affair, and a broadcaster who had received a death threat and who has managed to keep even his name legally embargoed. I think it was Jonathan Ross - but that's a wild guess; I know nothing, as Manuel used to say.

But while the law plainly needs changing, for newspapers to use amenable MPs to help them defy the courts shows a dangerous lack of respect for the rule of law and the independence of the judicial process. I would go so far as to describe Farrelly's action as an abuse of privilege. (If you're looking for evidence of collusion, try this: "the Eye learns that one MP hopes to break the conspiracy of silence, under parliamentary privilege, when the Commons reassembles later this month.") From now on, any newspaper which objects to the terms of a court order need only find a sympathetic MP to disclose details of a case in a Parliamentary question. Whether or not Parliamentary privilege should be absolute or subject to the requirements of public interest (if - big if - public interest is served by such injunctions) is an important question. It doesn't look as though it's going to get a full hearing, however.

It's not clear whether or not the mass Twittering and blogging for the Farrelly Question (which occupied much of last night and the whole of this morning) contributed to the collapse of the injunction by placing the information in the public domain. That's what many bloggers and Twitterers are deliriously proclaiming, of course. It may be that the lighting-up of parts of the Web contributed to Carter-Ruck's decision to throw in the towel. Or it may be that they reasoned that they were legally on slippery ground. Perhaps it was the reaction of other MPs (especially two Lib Dems) who announced their intention to kick up a fuss. All we can be sure of is that the facts relating to Trafigura are, thanks to Carter-Ruck's lead-footedness, rather more widely known than they would otherwise be. But will that be because of the internet, or just because there's nothing like a good old freedom of the press row that brings bitter media rivals together in a common cause.

Today's other exemplar of the Streisand phenomenon involves Geert Wilders, who was banned from Britain earlier this year by our much-missed Jacqui Smith. Today Wilders won his appeal against the ruling. Of course he did: the ruling was legally dubious and highly likely to be overturned. As an EU citizen, the Dutch anti-Islamist MP has an absolute right to freedom of movement within Europe and a less absolute, but still significant, right to freedom of expression. Both were violated by the then home secretary. Under the relevant regulations, the British government would have had to demonstrate that he posed "a genuine, present and sufficiently serious threat". Wilders, who had visited Britain many times before without causing any trouble, and who had been invited to speak at the House of Lords (scarcely a hotbed of subversive activity) did not remotely constitute such a threat. As for his film Fitna, that had already been available to view online for almost a year.

The possibility of trouble - caused not by Wilders, but by his opponents - was used as a pretext to ban him from our shores. But Smith's real reasons had more to do with placating Muslim opinion (or what she imagined was Muslim opinion - most publicly prominent Muslims, up to and including Inayat Bunglawala - came out against the decision) and her desire to strike a political pose than any danger that Wilders' presence in Britain might have posed. If he had come, few media outlets would have bothered to report the fact. As it was, he became a cause celebre (a role he plainly enjoys). He got to pose as a free-speech martyr, while the British government (not for the first time) contrived to appear at once cowardly and repressive. Many in Eastern Europe looked on aghast. Even before he won his appeal, Wilders had won hands down. And, of course, Fitna became an internet hit. As for Jacqui Smith, unrelated recent events have left her so discredited this development is unlikely to cause her much damage, except to cement her reputation as one of the worst home secretaries in our history.

I was amused to note that Mr Wilders and Guardian editor Alan Rusbridger gave exactly the same reaction to today's developments. It was, they said, "a great day for freedom of speech". It was. But there's an interesting distinction between the two cases. In one, a politician stepped forward to rescue free expression from a judicial attempt to suppress it. In the other, a court had to save freedom of speech from a politician.

UPDATE

Wikileaks have obtained a copy of the secret injunction. It's quite technical, but this is the significant bit:


It more or less confirms what I suspected: that Carter-Ruck made no specific attempt to suppress the Guardian's report of a proceeding in Parliament (i.e. Paul Farrelly's written question). Rather, the initiative came from the Guardian, who set a cunning trap for Carter-Ruck. I'm guessing that they informed the law firm of their intention to seek a revision or overturning of the injunction because of Parliamentary Privilege. Carter-Ruck's initial position was to oppose the Guardian's move (thus protecting their clients' anonymity); this soon became unsustainable, however. That particular part of the story was less one of high constitutional principle than of fencing between lawyers. However, the wider point - about the desirability of secret injunctions - has been thoroughly aired as a result of the Guardian's machinations. This is, of course, excellent news. But I doubt it was really a triumph for Twitter or new media generally. Rather, the dead-tree press joined forces with MPs invoking principles dating from the 17th century. Twitter just stood and cheered from the sidelines.