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British Libel Law Examined After Controversial Gag Order Against The Guardian

October 16, 2009 10:00 AM
by Denis Cummings
British lawmakers are speaking out against “super-injunctions” after The Guardian newspaper was unable to report on a Parliamentary proceeding related to a toxic waste dumping scandal.

“Super-Injunction” Temporarily Silences The Guardian

In September, British newspaper The Guardian obtained evidence that international oil trader Trafigura had known about the dangers of toxic waste that was dumped in the Ivory Coast, which made an estimated 30,000 people ill. On Sept. 11, Trafigura and its legal firm, Carter-Ruck, obtained an injunction against The Guardian that prevented the paper from reporting the story.

On Monday, British MP Paul Farrelly submitted a question to Parliament about the injunction. Though the right to report on Parliament is guaranteed under the 1688 Bill of Rights, and though the question appeared on the Parliament Web site, Carter-Ruck used the injunction to prevent The Guardian from reporting the question.

The Guardian ran articles on Monday and Tuesday saying that it could not report on a story. “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,” wrote David Leigh.

Editor Alan Rusbridger made a post on Twitter alluding to the injunction. By Tuesday, users had ascertained that the case related to Farrelly’s question, and the story was one of the most talked-about on Twitter.

Before a court hearing Tuesday afternoon, Carter-Ruck dropped the injunction. The Guardian soon published its story from September on Trafigura.

Reaction: Lawmakers critical of super-injunctions

The injunction filed against The Guardian is known as a “super-injunction,” which is filed in secret and prevents news sources from even reporting that it exists. The Guardian reports that it has received at least 12 super-injunctions this year, while many tabloids receive “a handful” each week.

In the wake of the Trafigura controversy, several MPs and Prime Minister Gordon Brown have spoken out against super-injunctions. Farrelly suggested that “Carter-Ruck’s behaviour constitutes potential contempt of Parliament,” while MP Peter Bottomley said, “No court should grant such an order.” Brown said that his justice secretary was working to “clear up what is an unfortunate area of the law.”

Background: Libel law in Britain

Super-injunctions are possible under Britain’s libel laws that protect the freedom of the press far less than most other countries’. The libel system requires the writers to prove that their statements are true, whereas most other countries require the plaintiff to prove the statements are false.

Carter-Ruck has been at the forefront in expanding the libel industry. Its founder, the late Peter Carter-Ruck, became a prominent libel lawyer in the 1950s and used the law to “encourage socialites to sue for imagined slights and fashion a weapon for politicians to suppress hostile stories,” wrote former Cater-Ruck partner David Hooper, who says that Carter-Ruck “had a chilling effect on the media.”

Britain’s libel system has made it a popular destination for “libel tourism,” the practice of suing for libel in countries with weak free speech protections. Foreign governments and the United Nations have been critical of Britain for maintaining libel laws that allow this to happen.

In response to a case involving American author Rachel Ehrenfeld—who was sued in Britain after 23 of her books were purchased online there—four U.S. states have passed laws protecting Americans from British libel cases and Congress may pass a similar bill. The UN Committee on Human Rights said in 2008 that British libel law “served to discourage critical media reporting on matters of serious public interest.”

While the British government has shown little desire to reform its libel laws, the Trafigura case illustrates the limitations of libel laws in the Internet age. Carter-Ruck’s gag order could not prevent Twitter and other Web sites from transmitting the story to a large audience.

“The difficulty is that injunctions cannot readily be obtained in the English courts against overseas internet service providers which would prevent them making the information available,” said Keith Ashby, head of litigation at Sheridans, to the Financial Times. “If people get a whiff that publication of information has been injuncted in the print media, they are getting more canny about how to find the information on the internet.”

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