Twitter and the Internet defeat heavy-handed lawyers

Readers may not be aware of the so-called 'Trafigura Affair'. Nevertheless, I'm delighted to read about the humiliating defeat administered to the company and its lawyers after they tried to silence legitimate reporting concerning parliamentary matters in England.

First, some background.

In 2002, Mexican state-owned oil company Pemex begin to accumulate significant quantities of coker gasoline, containing large amounts of sulphur and silica, at its Cadereyta refinery. By 2006 Pemex had run out of storage capacity and agreed to sell the coker gasoline to Trafigura. In early 2006, Pemex trucked the coker gasoline to Brownsville, Texas where Trafigura loaded it aboard the Panamian registered Probo Koala tanker, which was owned by Greek shipping company Prime Marine Management Inc and chartered by Trafigura.




Trafigura desired to strip the sulphurous products out of the coker gasoline to produce naphtha which could then be sold. Instead of paying a refinery to do this work, Trafigura used an experimental process onboard the ship called "caustic washing" in which the coker was treated with caustic soda. The process worked, and the resulting naptha was resold for a reported profit of $19 million. The waste resulting from the caustic washing would typically include highly dangerous substances such as sodium hydroxide, sodium sulphide and phenols.

On August 19, 2006 the Probo Koala offloaded more than 500 tons of toxic waste at the Port of Abidjan, Cote d'Ivoire. This material was then spread, allegedly by subcontractors, across the city and surrounding areas, dumped in waste grounds, public dumps, and along roads in populated areas. The substance gave off toxic gas and resulted in burns to lungs and skin, as well as severe headaches and vomiting. ... The company has claimed that the waste was dirty water ("slops") used for cleaning the ship's gasoline tanks, but a Dutch government report, as well as an Ivorian investigation dispute this, claiming this was toxic waste delivered from Europe to West Africa, after the ship had previously tried to offload at the port of Amsterdam, but was rejected there.




During an ongoing civil lawsuit by over 30,000 Ivorian citizens against Trafigura, a Dutch government report concluded that in fact the liquid dumped contained two 'British tonnes' of hydrogen sulphide.

. . .

In the weeks following the incident the BBC reported that 17 people died, 23 were hospitalized, and a further 40,000 sought medical treatment (due to headaches, nosebleeds, and stomach pains). These numbers were revised upward over time, with the numbers reported by the Ivorian government in 2008 reaching 17 dead, dozens severely ill, 30,000 receiving medical treatment for ailments connected to the chemical exposure, of almost 100,000 seeking medical treatment at the time.




While the company and the Ivorian government continue to disagree on the exact make up of the chemicals, specialists from the United Nations, France, and the Dutch National Institute of Public Health and the Environment (RIVM) were sent to Abidjan to investigate the situation.

Following revelations by local press and government on the extent of the illnesses involved, the nine month old transitional government of Prime Minister Charles Konan Banny resigned.

There's much more at the link. It's very worthwhile reading, to see how a multinational was prepared to go to almost any lengths to make an extra profit whilst not giving a damn for how many people it might kill, sicken or otherwise affect in the process. (I'm sure Trafigura wasn't - and isn't - alone in this attitude: it just got caught. Others have escaped scrutiny, so far.)

The Guardian newspaper managed to locate a copy of a report on the incident prepared for Trafigura by a British consulting firm. That's when things got interesting.

It was on 11 September that Carter-Ruck, the libel specialists employed by [Trafigura], first went to court to get an emergency super-injunction preventing the Guardian from publishing the Minton report.

The super-injunction, so-called because its existence was also declared secret, prevented the paper from publishing details of a report commissioned in 2006 by Trafigura into a toxic-dumping incident in Ivory Coast. That incident, which led to one of the biggest personal injury cases in legal history, had been the subject of a prolonged Guardian investigation.

The gagging order, later confirmed by another judge, was imposed by Mr Justice Maddison under an anonymously named court action ("RJW and SJW v The Guardian") and the court documents were sealed. The Guardian, which had contested the action, was unable to tell its readers that it had been injuncted.

The report was meanwhile published in other European countries – and on the Wikileaks website – often used by whistleblowers to publish information banned by the courts in a particular country.

For the past month the paper and the solicitors had been negotiating behind the scenes to vary the draconian nature of the injunction, prior to a court hearing at which the issues could be properly considered.

On Monday the Guardian learned that Paul Farrelly, MP for Newcastle-under-Lyme, had tabled a parliamentary question revealing the existence of the injunction. The paper informed Carter-Ruck that it intended to publish the information. The libel firm immediately warned the paper it would be in contempt of court – an offence punishable by imprisonment or sequestration of a company's assets – and demanded an undertaking that there would be no story.

The paper's legal advice was that it could do no more than publish a front-page story saying it had been prevented from publishing the proceedings of parliament – a sacrosanct right since the 18th-century. But the story had no sooner been published than bloggers set to work on discovering the banned information. Using social networking sites – including Twitter – thousands of people spread the information. Within 12 hours, millions of people around the world knew of the Minton report and Trafigura had become one of the most searched-for internet terms.

MPs reacted with anger to the suggestion a law firm had tried to gag a newspaper from reporting parliament and demanded an emergency debate, to be held next Wednesday. Peter Bottomley, Tory MP for Worthing West, threatened to report Carter-Ruck to the Law Society.

Carter-Ruck responded yesterdayon Thursday by writing to the Speaker of the Commons, John Bercow, warning him it viewed the matter as sub-judice, which would prevent MPs from debating the report, or the law firm's behaviour. Then, after newspapers had gone to press tonight, Trafigura and Carter-Ruck threw in the towel, announcing the Guardian should "treat these orders as discharged". It was a recognition that the attempts at secrecy had been defeated by a newspaper, the collaboration of the web, and parliament.

There's more at the link.

For those who'd like to read Trafigura's internal documentation on the affair, as uncovered by the Guardian, please click here. For the Minton report itself, the subject of the now-withdrawn injunction, click here.

The sheer gall of a multinational corporation and its lawyers trying to gag reporting in the British press of activities in that nation's parliament is so arrogant as to almost defy belief - but that's what happened. Even worse, the law firm concerned then tried to not-so-subtly browbeat Members of Parliament into not debating the matter! Rightly, the chorus of public outrage grew very quickly into a storm of protest, and things have now been exposed with far more (and far more negative) publicity than Trafigura's management can have imagined in its collective worst nightmares.

I'm very pleased that users of Twitter and the Internet, bloggers, and interested citizens were able to use the tools at their disposal to ferret out the details of this case and blanket the World Wide Web with them, to the point that the effort to hide the truth collapsed within 24 hours. The incident is a wonderful demonstration and affirmation of the Internet's importance as a tool of democracy. It sheds light where others seek to keep things dark, and empowers ordinary people like you and I to give the finger to those who seek to manipulate us.

Well done to the Guardian and all concerned!

Peter