Trafigura & Carter Ruck Versus Freedom of Speech
The video below presents the censored by a super-injunction BBC Newsnight report 'Dirty Tricks and Toxic Waste in the Ivory Coast'. Trafigura and Carter-Ruck have mounted a desperate campaign to stop the media from reporting on the illegal dumping, which is said to have caused vomiting, choking and skin eruptions in some 100,000 people and killed at least 12 Ivorians.
The United Nations Special Rapporteur Prof. Okechukwu Ibeanu concluded in a report on 3 September 2009 that:On behalf of Trafigura, Carter Ruck solicitors have used a 'super-injunction' to prevent the publication of a Trafigura report (the Minton report) into this and to prevent both the reporting of the injunction and the reporting of a parliamentary question. As well as the injunction against the Guardian, the firm issued a libel writ against BBC2’s Newsnight, which also reported on the dumping, and threatened journalists from Norway, the Netherlands, Estonia and The Times.
"On the basis of the above considerations and taking into account the immediate impact on public health and the proximity of some of the dumping sites to areas where affected populations reside, the Special Rapporteur considers that there seems to be strong prima facie evidence that the reported deaths and adverse health consequences are related to the dumping of the waste from the Probo Koala."
In December 2009 Trafigura and their lawyers Carter Ruck were able via a super injunction to remove the BBC Newsnight documentary (broadcast on 13 May 2009) from the BBC online page and to force apologies from the BBC: «The BBC withdraws the allegation that deaths, miscarriages or serious or long-term injuries were caused by the waste and apologises to Trafigura for having claimed otherwise»
Today Wikileaks published BBC’s 39-page defence against the Trafigura libel suit.
This document was submitted to the UK's High Court by the British Broadcasting Corporation (BBC) in September 2009, as a Defence against a libel claim brought against them by the oil company Trafigura. A May 2009 BBC Newsnight feature suggested that 16 deaths and many other injuries were caused by the dumping in the Ivory Coast of a large quantity of toxic waste originating with Trafigura. A September 2009 UN report into the matter stated that 108,000 people were driven to seek medical attention. This Defence, which has never been previously published online, outlines in detail the evidence which the BBC believed justified its coverage. In December 2009 the BBC settled out of court amid reports that fighting the case could have cost as much as 3 million pounds. The BBC removed its original Newsnight footage and associated articles from its on-line archives. The detailed claims contained in this document were never aired publicly, and never had a chance to be tested in court. Commenting on the BBC's climbdown, John Kampfner, CEO of Index on Censorship said: "Sadly, the BBC has once again buckled in the face of authority or wealthy corporate interests. It has cut a secret deal. This is a black day for British journalism and once more strengthens our resolve to reform our unjust libel laws." Jonathan Heawood, Director of English PEN, said: "Forced to choose between a responsible broadcaster and an oil company which shipped hundreds of tons of toxic waste to a developing country, English libel law has once again allowed the wrong side to claim victory. The law is an ass and needs urgent reform." Now that this document is in the public domain, the global public will be able to make their own judgement about the strength of the BBC's case. in Wikileaks
Trafigura meanwhile has paid out $200 million to the government of the Ivory Coast, and in London settled for £30 million a joint action made by the 31,000 Ivorians who claimed Trafigura was responsible for their illnesses.
August 2006, Trafigura dumps toxic waste in and around Abidjan, Ivory Coast. According to a UN report, over 100,000 Ivorians seek medical help for breathing problems, vomiting and skin eruptions, 15 die. Trafigura maintain that the material discharged was harmless.
7 September, Trafigura commissions its scientists to investigate the possible effects of the dumping, this is known as the Minton report.
14 September, the Minton Report is sent to Trafigura. According to The Times the report said that Trafigura's oil waste was potentially highly toxic and "capable of causing severe human health effects", including death.
13 February 2007, Trafigura pay the government of Ivory Coast an out-of-court settlement of $200 million, but accept no liability.
March 2008, the Ivorian Court of Appeal say there is insufficient evidence to pursue criminal charges against the company.
3 September 2009, UN special rapporteur for toxic waste Prof. Okechukwu Ibeanu finishes his report on the dumping of toxic waste in Ivory Coast.
11 September 2009, Carter Ruck solicitors obtain a 'super-injunction' in the High Court on behalf of their client Trafigura to prevent The Guardian from publishing the Minton report.
16 September, The Guardian and BBC publish internal emails between Trafigura employees, "This is as cheap as anyone can imagine and should make serious dollars … Each cargo should make 7m!!"
Mid-September, Trafigura issue libel threats against The Guardian and BBC via Carter Ruck.
23 September, Trafigura agree to compensate 31,000 claimants around £1,000 each. The payout offer amounts to a total of around £30m. The original claim was for £100m, which would have given the claimants around £3,000 each.
Trafigura refuse to accept liability as part of the settlement. The waste, the company said: "could at worst have caused a range of short-term, low-level flu-like symptoms and anxiety".
1pm, 12 October, The Guardian contact Carter Ruck solicitors with a copy of Paul Farrelly MP's parliamentary question, telling them they intended to publish the question.
Mr Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in Ivory Coast, commissioned by Trafigura.
Carter Ruck responded the same day. Alan Rusbridger's recollection of events as follows is thus:
"their letter unequivocally asserted that the Guardian would be in contempt of Court and sought an immediate undertaking that we would not publish.
The letter also stated that Carter-Ruck did not even accept that the publication by Parliament of Mr Farrelly's question placed the existence of the injunction in the public domain!
We took leading counsel's advice on this letter. She advised us not to publish, but to return to court to seek a variation in the order."
13 October, The Guardian bring a formal challenge to the 'super-injunction' before Mr Justice Sir Michael Tugendhat; Index on Censorship also write to the Judge, but because it is a 'super-injunction' do not know the content of the injunction, the party who served it, or its function.
7.30pm, 16 October, Carter Ruck write to The Guardian advising that it is "released forthwith" from any reporting restrictions relating to the 'super-injunction' placed on the Minton report. The Guardian publishes the Minton report.
18 October, the Speaker of the House of Commons confirms the adjournment debate will proceed.
19 October, a meeting between Carter Ruck and parliamentarians.
sources : Libel reform campaign, Index on Censorship, English Pen and Richard Wilson's blog Don’t Get Fooled Again
BBC: Trafigura Statement
How the Trafigura story unfolded - in the Guardian
A year of gagging - on Index on Censorship
Richard Wilson: Calling all bloggers – Help beat the gag on the BBC
Ian Dale: BBC Caves in to Carter Ruck Threats Over Trafigura Film
Wikileaks: BBC Newsnight's "Dirty tricks and toxic waste in Ivory Coast", 15min video, 13 May 2009
Wikileaks: BBC deletes important story on toxic waste dumping in the Ivory Coast after legal threats, 12 Dec 2009
Wikileaks: Updated secret gag on UK Times preventing publication of Minton report into toxic waste dumping, 16 Oct 2009
Wikileaks: Minton report secret injunction gagging The Guardian on Trafigura, 11 Sep 2009
Wikileaks: Minton report - Trafigura toxic dumping along the Ivory Coast broke EU regulations, 14 Sep 2006 - not working updated link to the Minton Report PDF
BBC Censored Newsnight page - archived in PDF