Trafigura, Carter-Ruck and the Streisand Effect

UPDATE: The situation has now been resolved and the Guardian ungagged. Read to the bottom of the post for further details.

Author's note: I am not the Devil's Kitchen. Cross-posted from Mr Eugenides.

Looks like Carter-Ruck solicitors should be in the PR business, because neither I nor, I'll wager, you, had ever heard of Trafigura until they allegedly slapped an injunction on the Guardian prohibiting them from - get this - reporting proceedings in Parliament in which Trafigura's name had, apparently, been mentioned.

Well, get comfy, guys, because you're big time now; everyone who's anyone (as well as those of us who aren't) are busily writing about you, and directing baffled readers to articles like this one, in the Independent. In no particular order, you're now famous to the readers of, inter alia, Iain Dale, Guido, Dizzy, Next Left, Unity, Chicken Yoghurt, Harry's Place and Timmy, who between them can't be a kick in the arse off having a higher daily readership than the paper you've tried to gag. (This outbreak of blogospheric solidarity, to put it into context, is akin to the Russians and the Germans taking a time-out from slaughtering each other to erect a big sign in downtown Stalingrad telling everyone that Cary Grant was a poof.) Add Alex Massie at the Spectator and Nick Cohen and Joshua Rozenberg at Standpoint magazine, and this is quickly becoming an online clusterfuck of epic proportions.

One day these highly-remunerated libel lawyers are going to wake up and realise that they aren't being paid in guineas any more and that, thanks to this thing called the Interwebs, they can't shut down freedom of speech the way they used to in the old days. On the contrary; as Barbara Streisand found to her cost, 99% of people don't give a shit about 99% of stuff, right up the moment when you start waving your arms up and down telling them to stop reading about it.

If I were you, I'd ask Carter-Ruck to itemise the bill.

UPDATE: The Guardian have now been ungagged after a tsunami of online publicity, and after having requested (though before receiving) an urgent hearing to discuss the gag order.

Mind what you say

As those of you who read Private Eye on a regular basis might have noticed, this country's fucking stupid libel laws have made the UK a haven for so-called "libel tourists"—people who bring libel cases through the British courts, even though they have little to do with British citizens.

Despite the takedowns of various high(ish)-profile blogs, there has been a surprising lack of co-ordinated action in the blogosphere around this issue. After all, despite the bitching and moaning of the MSM, the politicians and their ghastly hangers-on, we bloggers are subject to libel laws, just like everyone else. I was, at one point, involved in campaign discussions with Manic and Unity but my involvement petered out due to time restrictions.

So, these were the two bloggers that I emailed back at the beginning of May, when I spotted this item on the govtrack.us website.

To create a Federal cause of action to determine whether defamation exists under United States law in cases in which defamation actions have been brought in foreign courts against United States persons on the basis of publications or speech in the United States.

A-ha! I thought. This is the US fighting back against these libel tourists—or, at least, ensuring that their own citizens are protected (something that the US is pretty good at doing).

Now, via @bengoldacre, your humble Devil has noticed that the US government's move has made it into The Times.

American politicians are pushing through free speech laws to protect US citizens from libel rulings in British courts that have been accused of stifling criticism of oligarchs and dictators.

The development follows claims that foreigners flock to the UK to begin hugely expensive defamation cases even though they have little to do with this country.

Claimants who have indulged in so-called “libel tourism” include a Ukrainian businessman who sued a Ukrainian language website based in his homeland for £50,000, simply because its contents could be viewed in Britain.

An Icelandic bank successfully sued a Danish newspaper in the British courts for publishing unflattering stories about the advice it gave to clients, despite collapsing six months later.

Now lawmakers in several American states, including New York and Illinois, have moved to block the enforcement of British libel judgments in the United States.

Congress is also considering a bill that will allow defendants of foreign libel suits to counter-sue for up to three times the damages sought by a claimant if their right to free speech, enshrined in the First Amendment, has been violated.

Excellent. Now, just possibly, we could get a campaign together and get our weakened MPs to change this utterly unjust law.

“Our libel laws have made Britain a place where any of the world’s bullies and wealthy celebrities can wander into court 13 \ and launder their reputations,” said Mark Stephens, a partner at the law firm Finers Stephens Innocent, which advises many non-governmental organisations (NGOs).

“In the US you can still be sued but claimants pay for their own lawyers, fewer spurious claims go to court and freedom of speech is enshrined in law

by the First Amendment. Some NGOs are seriously considering moving their publication people out to the States to protect themselves.”

London has long been regarded as a claimant-friendly place for libel actions because defendants are deemed “guilty” until they have proved their innocence, the opposite of the usual burden of proof in criminal cases. Damages are also typically higher in the UK and the costs so expensive that defendants often feel compelled to settle out of court, even though they may be in the right.

Because there is no legal aid for such cases, the government has allowed libel and privacy claimants to sue under “no win, no fee” arrangements. This enables lawyers to claim a 100% “uplift” on their normal rates. One of London’s leading libel lawyers charges up to a total of £1,200 an hour.

Indeed.

And up to their necks in this disgusting defence of (often) deeply unpleasant people are our old friends Schillings, and Lord Justice Eady (a fucking turd even by the standards of judges)—the latter ruled in the case, detailed below, which the Eye keeps returning to.

Mr Justice Eady, a High Court judge, has delivered a series of rulings that have bolstered privacy laws and encouraged libel tourism. He awarded Max Mosley, the Formula One president, privacy damages of £60,000 over the News of the World’s exposé of his sex life.

Most recently, Eady has been accused of “stifling” scientific debate after he ruled in favour of a trade body for chiropractors against a science writer who had accused the body of promoting “bogus treatments”. Eady said that Simon Singh, the writer, had effectively accused the body of dishonesty.

In a landmark decision five years ago Eady gave judgment for Khalid bin Mahfouz, a Saudi banker, who had sued Rachel Ehrenfeld, an American academic. She suggested in a book that the banker had links to the financing of terrorist groups.Ehrenfeld had not published or promoted the book in this country but 23 copies sold over the internet were shipped to Britain. She decided not to defend the case, but Eady ordered her to pay £130,000 in costs and damages.

He also ruled that any copies of her book must be pulped. This judgment almost single- handedly launched the American freedom of speech backlash against UK libel laws.

Well, good for the Americans, I say. And it's typical that not only should they move to stop our courts interfering with their citizens, but they are adding a counter-sue option. Excellent.

And, given that the Americans have now drawn attention to the fact that our libel laws are deeply unjust and archaic, what will our MPs do...?

I'm guessing that the answer to that is "fuck all".

P.S. The article also mentions the case of Simon Singh, who is being sued for libel by a bunch of fucking woo peddlers, which Unity has an update on.