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toxic claims

bergens tidende, 24 november 2009

In June 2008 the Norwegian television station NRK broadcast a documentary called Dirty Cargo which told the story of the tanker Probo Emu. Chartered by the Swiss-based multinational Trafigura in October 2006, the tanker was carrying sulphurous coker naphtha, the tanker was carrying sulphurous coker naphtha, a toxic waste, to be processed  at a chemical cleaning facility owned by Vest Tank near the village of Sløvåg. In May 2007 a tank containing the waste exploded, creating health and environmental problems in the local area.

Much of the detail in Dirty Cargo came from emails that confirmed that Trafigura executives had known about the hazardous nature of the waste and from the so-called Minton report, a draft scientific study of the waste and its effects on humans that had been commissioned by Trafigura itself. The toxic sludge, the report concluded, could cause severe burns to the skin and to the lungs, permanent ulceration, corneal damage, vomiting, diarrhoea, loss of consciousness and death.

Three months before theProbo Emu had arrived in Norway, its sister ship the Probo Koala had left Amsterdam for Abidjan, in the Cote d’Ivoire, carrying the same toxic cargo. In Abidjan, the waste was handed over to a local company, Compagnie Tommy, which, instead of processing it, illegally dumped it in ditches and rubbish tips around the city. Within days people nearby were reporting the very symptoms highlighted in the Minton report - respiratory problems, nausea, dizziness, vomiting, burns and irritation. Eventually Trafigura paid 30,000 claimants around £1000 compensation each, though it denied liability and never revealed the Minton report to their lawyers.

In Britain, the Guardian and BBC’s Newsnight had been investigating the dumping of the toxic waste in the Cote d’Ivoire and, like the NRK, had obtained internal emails as well as the Minton report. But there the similarity ends. In Norway, the NRK had posted both the emails and the Minton report online. In Britain Trafigura sued Newsnight for libel and slapped a so-called ‘super injunction’ on the Guardian. This forbid it not just from revealing the contents of the Minton report, but also from reporting that it had been forbidden from revealing it.

Last month, an MP, Paul Farrely, tabled a question in parliament asking what measures the British government was taking to protect press freedom in light of the injunction. In response Trafigura managed to get another ‘super injunction’ under which, the Guardian reported, it ‘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 prevented 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.’

Welcome to the Kafkaesque world of English libel law. The Trafigura case, and the difference between the reporting in Norway and in England, is simply the latest instance of the use of libel suits in English courts to hush up investigative reporting and throttle free speech. Of all the bad laws on Britain’s statute books (and there are many) the libel law is among the worst.

The law of libel in England (a different, though not much better, law applies to Scotland) goes back to a statute created in 1275 to protect ‘the great men of the realm’ from stories which could stir the people against them. From then till now, the law has rested on the quintessentially English assumption that gentlemen are never wrong, though today’s ‘gentlemen’ are not aristocrats but big corporations and rich celebrities seeking to protect their ‘reputation’ by squashing investigation and criticism.

The basic rule of law in England, as in most countries, is that the accused is innocent until proven guilty. Except, that is, when it comes to libel. English libel law presumes that the defendant has published lies and demands that he prove the contrary. It also assumes that claimants have an ‘unblemished record’ – as any gentleman, of course, would – and need only show that the words complained of are capable of lowering their standing in the estimation of ‘right-thinking members of the public’.

In the vast majority of cases brought to court in England, the defendant is unable to prove that he did not libel. Most cases, however, never even get that far, because libel cases are exorbitantly expensive. A recent study showed that the cost of libel actions in England is 140 times higher than the European average. Most defendants are forced to accept defeat and settle simply because they cannot afford to go to court.

Little wonder, then, that London has become the libel capital of the world. Rich foreigners who want to silence their critics, and know that they cannot do so in their own country, flock to London to sue. Jennifer Lopez, Britney Spears, Roman Polanski, Jennifer Aston, Steve Bing, Harrison Ford – Hollywood’s A list have all been in London in recent years not to promote films but to sue for libel.

And it’s not just celebrities that exploit England’s libel laws. In 2004, the American journalist Rachel Ehrenfeld wrote a book called Funding Evil: How Terrorism is Financed and How to Stop It in which she made allegations about a Saudi billionaire Khalid Bin Mahfouz. Mahfouz knew hecould not have successfully sued Ehrenfeld in the USA. So, despite the fact that Ehrenfeld lives and works in New York and her book was published there, he sued her in London, on the grounds that 23 copies of Funding Evil had been bought online by Britons. Ehrenfeld refused to recognize the London court’s jurisdiction over her and therefore lost the case (since she had to prove herself innocent rather than Mahfouz show her to be guilty). The judge fined her £30,000 plus costs.

So common have such cases become that America is enacting laws specifically to defend its citizens from English libel rulings. Four US states have passed legislation declaring that foreign libel judgements are unenforceable on US soil unless the foreign law affords the defendant the same protection as does the First Amendment in America. The Free Speech Protection Act, now passing through the US Congress, seeks to provide federal protection against so-called ‘libel tourism’. Meanwhile, a host of American newspapers, including the New York Times and the Washington Post, are seriously considering withdrawing hard copies from Britain and blocking Britons from accessing their websites so as not to fall foul of England’s medieval libel laws.

But, as the Trafigura case reveals, the most serious extension of libel laws has been through the use of so called ‘super injunctions’. Under the guise of protecting ‘reputation’ and ‘privacy’ libel lawyers have become highly adept at persuading judges that the media should be prevented not only from reporting on their client but also from reporting the fact that they have been prevented from doing so. We don’t even know therefore that we are being censored.

In the Trafigura case, the Guardian emerged triumphant. After a Twitter campaign exposed the company’s tactics and made available the Minton report online, Trafigura abandoned its injunction. Most defendants, however, are not so lucky. As Free Speech is Not For Sale, a report on libel law published last week jointly by the free speech organization Index on Censorship and PEN, the writers’ union, puts it, English libel law is ‘designed to serve the rich and powerful and does not reflect the interest of a modern democratic society.’

In a landmark ruling in 1964, the US Supreme Court limited the ability of public figures to sue for libel, observing that in free debate erroneous statements are inevitable and must be protected.  Otherwise, it argued, free expression would not have the ‘breathing space’ it needs, and media self-censorship would become the norm. The fear of not being able to prove the truth of the published words in court – and the recognition of the expense and resources required to do so – would, the Court argued, limit public debate. You only have to look at Britain to recognize the truth of those words.