Wow, I’d certainly like to know the name of the PR agency employed by Trafigura. It couldn’t have been easy to turn a fairly obscure oil trading company into the number one trending topic on Twitter. How do you manage to create that kind of buzz? I certainly hope that the people responsible will be appropriately rewarded.
In general, I have got quite a lot to say in favour of English libel law, and perhaps will for a future “contrarian Wednesday” post. But the current trend toward aggressive use of preliminary injunctions seems to me to be clearly abusive, particularly when (as alleged by Private Eye) some law firms attempt to file for injunctions as late as possible in the hope of getting an inexperienced judge out-of-hours and putting him under pressure. Anyway, this attempt to gag the press has backfired spectacularly, which will hopefully (viz, the McLibel case) make any future would-be muzzlers of the press think twice before pushing too hard.
{ 46 comments }
Kieran Healy 10.13.09 at 1:41 pm
How do you manage to create that kind of buzz?
I think that in essence you need to get Stephen Fry to tweet about it.
Barry 10.13.09 at 2:00 pm
“… and perhaps will for a future “contrarian Wednesday†post.”
Daniel, please don’t. Unless you’re bucking for a slot in Slate, or The New Republic :)
Salient 10.13.09 at 2:29 pm
All this post really needs is an ominous ellipsis between “appropriately” and “rewarded.”
(This trivial observation gives me the opportunity to point out that google helpfully improves the Wikipedia article on ellipses. Nothing like a good concrete example.)
Belle Waring 10.13.09 at 2:31 pm
Barry, you’re talking to a man who’s advanced the argument that Budweiser is a good, nay, even a superior beer. His contrarianism-fu is too advanced for the pikers at Slate.
Ginger Yellow 10.13.09 at 2:47 pm
My favourite thing about this story is that, even before the injunction was lifted, the parliamentary question was on Carter Ruck’s Wikipedia page. Gotta love the internet.
There’s no way these injunctions can work in a Wikileaks world, so I expect they will be consigned to the dustbin of history fairly soon. It’s still pretty outrageous that they can be granted, though.
Dan 10.13.09 at 2:58 pm
Or, looking another way, it was a brilliant piece of brinkmanship by the Guardian. Having been prevented from naming the Minton Report, they set up getting it mentioned in parliament. (at least I assume so; the MP asking the question is a former Observer journalist). Then either they manage to have the injunction relaxed, or they’re able to kick up a fuss like this (knowing that they need only drop a hint to the internet to sidestep the injunction and create an insta-mob). For once, Carter Ruck got played.
But notice that the media still can’t link to the document in question, even though it’s been online in the obvious places for weeks.
Barry 10.13.09 at 3:11 pm
A question from an ignorant American – does UK libel law extend to blocking the republication of non-classified government documents? Even things mentioned in Parliament (which presumably is a somewhat public location)?
Daniel 10.13.09 at 3:19 pm
What happened was that Carter-Ruck, acting for Trafigura, managed to get a court to provide a preliminary injunction against the Guardian, preventing them from publishing the material at issue in advance of a forthcoming libel hearing. This injunction was incredibly draconian, preventing the Guardian from even mentioning that they were subject to an injunction (although they were allowed to mention that Carter-Ruck were involved). This does an end run around the libel laws – although MPs in the House of Commons are covered by absolute privilege (can’t be libellous no matter what) and reporting of what they say is covered by qualified privilege (can only be libellous if malicious), if the Guardian were to report this, they would have broken the injunction and thus been in contempt of court. Having found themselves unable to report the order paper because of Paul Farelly’s question, they applied to the court to have the injunction varied.
So the issue here isn’t so much the libel law as the practice of handing out preliminary injunctions.
Barry 10.13.09 at 3:34 pm
Daniel, thanks for the explanation.
Belle Waring 10.13.09 at 2:31 pm
“Barry, you’re talking to a man who’s advanced the argument that Budweiser is a good, nay, even a superior beer. His contrarianism-fu is too advanced for the pikers at Slate.”
No, he just needs to dip it in fermented pigsh*t, to make it more platable to Slate. They *like* whackjob contrarianism – their only objection would be that Daniel has repeatedly and premeditatedly published things which offend the elites. Slate’s ‘contrarianism’ tends more towards ‘comfort the comfortable and afflict the afflicted’.
john b 10.13.09 at 3:55 pm
Hmm. If someone’s fond of “comfort the comfortable and afflict the afflicted”, then a defence of English libel law ought to be right up their street.
A starting point countering Dan’s putative article would be “compare and contrast the fate of the Taylor sisters (innocent, poor, no prospect of libel victory) with Robert Maxwell and James Goldsmith (guilty as hell, rich, won their cases)…”
Daniel 10.13.09 at 4:19 pm
the thread of my argument would be that Mr Abraham Foxman would not be able to carry out his modus operandi under anything like English libel law, and that this would be a good thing.
john b 10.13.09 at 4:32 pm
@11, yes, I can see that’s a good starting point. I’m not sure I’d place the trade-off between “loons can’t shout you’re an antisemite” and “crooks can get away with their crookery going unreported, as long as sufficiently rich” in quite the same place – I suppose it depends on whether one would rather the well was poisoned or dry…
Ginger Yellow 10.13.09 at 5:18 pm
I don’t want to pre-empt Daniel’s post (which I genuinely want to hear, though I’m sure I’ll disagree with it), but my main problem with English libel law lies with its absurd jurisdictional claims, not the burden of proof and absence of malice aspects. And the enormous cost of libel trials, which creates the chilling effect more effectively than the actual law. I do think the Reynolds defence needs to be strengthened and made more relevant to non-professional writers, but otherwise its flaws are somewhat exaggerated.
Sebastian 10.13.09 at 6:08 pm
“but my main problem with English libel law lies with its absurd jurisdictional claims”
The Polanski libel trial being an excellent example: the very probably true claim, supported by at least two witnesses, published in the United States, prosecuted from France without Polanski ever setting foot in the UK because he would have been extradited ends in a win for Polanski. Seriously?
politicalfootball 10.13.09 at 9:02 pm
It’s all well and good to be idealistic, but the English probably aren’t ready for all of the institutions of an advanced democracy. Best not to rush these things.
politicalfootball 10.14.09 at 2:44 am
This is what happens when libel law is insufficiently strict.
NomadUK 10.14.09 at 5:59 am
It’s all well and good to be idealistic, but the English probably aren’t ready for all of the institutions of an advanced democracy.
I should have thought from the last few election cycles that it was fairly clear the Americans weren’t quite up to it, either.
alex 10.14.09 at 7:38 am
Is there an ‘advanced democracy’ in the world?
Pete 10.14.09 at 10:16 am
@14: American law makes some pretty outrageous jurisdictional claims, too..
There needs to be some mechanism other than the free market or self-regulation for keeping the amount of deliberate lies in newspapers down, but English libel law definitely isn’t it.
Salient 10.14.09 at 12:00 pm
Is there an ‘advanced democracy’ in the world?
An ‘advanced democracy’ is like ‘advanced dungeons & dragons’ : a proliferation of rules designed to patch over intractable problems with the core mechanic, and more focus on ‘role’ and personality.
Ginger Yellow 10.14.09 at 12:39 pm
American law makes some pretty outrageous jurisdictional claims, too..
Such as? I’m not denying some exist, but the impression I get is that US courts are pretty modest in terms of jurisdictional claims, by Western standards. There’s certainly no comparison in defamation law, and as I unjderstand it the alien tort jurisprudence is more modest than, say, Spain or Belgium’s claims of universal jurisdiction over crimes against humanity not affecting its citizens or residents.
engels 10.14.09 at 12:51 pm
crimes against humanity not affecting its citizens or residents
Not to be picky, but this rather misses the point of the concept of a crime against humanity…
Ginger Yellow 10.14.09 at 1:16 pm
Well, yes. I’m thoroughly in favour of universal jurisdiction for such crimes. But as I understand it the alien tort law doesn’t do that. I’m happy to be corrected, but it’s my understanding that a foreign national can’t sue a foreign person/state in the US for a crime against humanity committed abroad. And in general, for obvious reasons, the US government has been firmly against such jurisdictional claims when made by foreign courts/tribunals.
Matt 10.14.09 at 1:17 pm
(21)-
One area where the US has, at various times, claimed very extended jurisdiction for its laws is with export control laws. At different points the US has claimed that all sorts of things that were exported legally to one country could not then be exported to certain third countries, and extended this not just to the physical items exported from the US originally themselves but also copies produced in the second country and, most offensively, to the “know-how” gained by non-US citizens who studied in the US and then wanted to make certain things to be sent to certain 3rd countries. The biggest controversy over this came in the ’80s in a dispute between the US and several European countries (and perhaps the EEC) about building a pipeline from the Soviet Union to Europe using “American” parts and technology. The US claimed the right to stop this under its export control laws. These days the laws are more often directed at China and others, and have not been applied as aggressively, but are still in place and sometimes used as a threat.
Matt 10.14.09 at 1:22 pm
Ginger Yellow- that’s just what the Alien Tort Claims act does- allow a non-citizen to sue another non-citizen in US district court for a tort committed abroad “in violation of the law of nations or a treaty that they US is a party to”. This was used, for example, by Bosnian women to sue Bosnian Serb military leaders for subjecting them to sexual violence for example (and win!) It’s different from a claim to universal jurisdiction in the sense you see in Spain, though, in that it’s a tort claim, not a criminal claim, and it’s brought by the injured party, not by a government prosecutor. US courts often try not to hear these claims, for a number of reasons (they are hard to deal with as witnesses and evidence are often not available, they can interfere with foreign policy, etc.) but they do have subject matter jurisdiction to hear them.
Barry 10.14.09 at 1:35 pm
politicalfootbal: “It’s all well and good to be idealistic, but the English probably aren’t ready for all of the institutions of an advanced democracy.”
NomadUK: “Ishould have thought from the last few election cycles that it was fairly clear the Americans weren’t quite up to it, either.”
Unfortunately, as an American, I agree. Even after the GOP f*cked the dog as badly as anybody has in US politics since Hoover, it still got 47% of the presidential vote.
The American people don’t learn very well, and the system takes that problem and amplifies it enormously.
ajay 10.14.09 at 1:47 pm
the English probably aren’t ready for all of the institutions of an advanced democracy
Every time someone asks me whether I favour independence for Scotland, I say that in theory it’s a good idea but the English just aren’t ready for self-government yet.
Ginger Yellow 10.14.09 at 1:48 pm
“The biggest controversy over this came in the ‘80s in a dispute between the US and several European countries (and perhaps the EEC) about building a pipeline from the Soviet Union to Europe using “American†parts and technology. The US claimed the right to stop this under its export control laws.”
That’s a matter of international law, though, surely. There’s nothing a US court could actually do to stop it.
As for alien tort, fair enough. All the cases I’d seen involved a US party at some point in the chain.
alex 10.14.09 at 2:14 pm
@27 – wins the thread…
Pete 10.14.09 at 2:36 pm
Ginger Yellow: I was thinking of Guantanamo; but also DMCA ( http://www.freesklyarov.org/ ), which involved the idea that publishing something on a webpage accessible to the US made it subject to US law. A very similar concept causes problems with British libel law – publishing it where it’s visible to the UK makes it subject to UK libel law.
Matt 10.14.09 at 3:02 pm
That’s a matter of international law, though, surely. There’s nothing a US court could actually do to stop it.
Well, they can put money fines on the companies the export the technology and then attach the property of those companies or any companies doing business with them in the US, thereby effectively excluding the offending companies from US markets, and in extreme cases they can put out arrest warrants for people doing the selling and the like. This is all domestic US law, it has a broad reach (though it hasn’t been used as aggressively in the last several years as it was during the cold war), and companies and individuals (and therefore states) take it very seriously, for good reason.
Ginger Yellow 10.14.09 at 3:08 pm
While the DMCA is seriously objectionable, I don’t see that case as being directly parallel to English libel law. Elcomsoft actively markets its products in the US, and indeed Sklyarov was talking about his circumvention methods in the US to a largely American audience.
I’m not sure what your argument is with regard to Guantanamo – again, seriously objectionable, but the whole point of it was that it was to be outside the jurisdiction of US courts.
Sebastian 10.14.09 at 6:16 pm
“which involved the idea that publishing something on a webpage accessible to the US made it subject to US law. A very similar concept causes problems with British libel law – publishing it where it’s visible to the UK makes it subject to UK libel law.”
I may be wrong, but I thought it was the idea that intentionally marketing something to the US audience can’t be shielded from US law. This is in distinction for example to say ebay’s cases in France, where marketing to a US audience but accessible to France was asserted to be enough to assert French jurisdiction.
Chris 10.14.09 at 6:51 pm
the idea that publishing something on a webpage accessible to the US made it subject to US law.
Isn’t “a webpage accessible to the US” the same thing as “a webpage”? I doubt the US would like it if the Chinese decided that publishing something on a webpage accessible to China made it subject to Chinese law.
The endpoint of this approach is that the web becomes subject to the harshest laws of every country (and locality?), *combined*.
P.S. Also, IIRC, this hyper-inclusive jurisdictional claim violates the US’s own precedent on jurisdiction.
nick s 10.14.09 at 7:11 pm
the impression I get is that US courts are pretty modest in terms of jurisdictional claims, by Western standards.
The claims of jurisdiction with regard to, say, a Canadian with a green card who smokes a a Cuban cigar in Canada, are amusingly expansive.
Substance McGravitas 10.14.09 at 7:25 pm
Apparently not, for rights holders. The BBC, for instance, blocks my access to certain audio and video based on my IP. This is easy to defeat – making your argument True For Geeks – but the purpose of it is to only show X content to those who are somehow entitled.
Martin Wisse 10.15.09 at 7:06 am
@21: Dutch citizens have been extradited to the US to stand trial there for the alleged offence of selling drugs to American tourists in Amsterdam. That’s mildly excessive in my view.
Walt 10.15.09 at 7:36 am
Why would the Netherlands extradite under those circumstances?
Pete 10.15.09 at 9:27 am
@38: presumably the DEA leans on them. See also Gary McKinnon and the lopsided UK-US extradition treaty: http://www.statewatch.org/news/2003/jul/25ukus.htm
Guantanamo was effectively inventing a jurisdiction to which (a) people could be transported against their will across international borders and (b) evaded any kind of outside scrutiny.
dsquared 10.15.09 at 9:38 am
See also Gary McKinnon
Gary McKinnon perhaps not the best example since he’s a) definitely guilty and b) definitely guilty of a crime committed against the US government.
ajay 10.15.09 at 10:34 am
Dutch citizens have been extradited to the US to stand trial there for the alleged offence of selling drugs to American tourists in Amsterdam.
Link?
Phil 10.15.09 at 10:59 am
Pete – whatever else Guantánamo Bay is, it’s not a *jurisdiction*. It’s a legally-created gap between three different jurisdictions, & a lawless zone by design – which looks quite exciting to people who’ve read too much Agamben, and just looks like a really dirty trick to the rest of us.
Phillip Hallam-Baker 10.16.09 at 10:33 pm
Well the very dead war criminal Lord Aldington certainly used the libel laws to protect his reputation as did the equally dead criminal Robert Maxwell.
More recently a whole parade of Tory MPs, not least former Prime Minister John Major brought a sequence of libel actions that were intended to surpress the truth. Archer won his case but later did prison time for the perjury. Major bankrupted the New Statesman by bringing a libel case against them over an allegation of adultery only later to admit that he had an adulterous affair with Edwina Currie.
Was there ever a UK libel plaintiff who was not a fraud?
When so many verdicts go in favor of those proven to be crooks and liars, what vindication can there be?
dsquared 10.17.09 at 12:54 am
Was there ever a UK libel plaintiff who was not a fraud?
(Professor Sir) Tim Brighouse, chief education officer of Birmingham who in 1994 sued the then education secretary John Patten for calling him “a nutter, wandering around frightening children” and won.
ejh 10.17.09 at 9:35 am
Although he’s been known to try and misuse the libel laws himself (re: Marina Hyde, for instance) Elton John also comes to mind.
Miss94 10.22.09 at 1:16 pm
Question is he allowed to work out at all? ,
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