Banned in Britain

Across the pond, new perils—and possibilities—for press freedom

The documents are ugly and embarrassing. In e-mails riddled with terms like “gasoline slops” and “caustic washing,” officials with Trafigura, a major global commodities trading firm, described plans to clean and re-sell contaminated oil from Mexico and deposit the wastes in Africa, since they were too toxic for regulators in Europe or the U.S. In one 2005 e-mail discussing oil-cleaning profits, Trafigura staffer James McNicol wrote, “This is as cheap as anyone can imagine and should make serious dollars.”

But what made it so “bloody” cheap, as another e-mail put it, was Trafigura’s decision to wash the oil on its own rather than pay for a full-fledged cleaning, and then pay a trucking outfit to dump the waste. The consequences were dire. Written throughout 2005 and 2006, the e-mails were part of a paper trail that Trafigura would later seek to hide from public view with help from British courts, which have become increasingly unkind to press freedoms—until a social-media protest of tweets and blogs forced the company to cease its efforts to keep the material secret.

Trafigura touts itself as one of the largest independent commodity traders on the planet—and the third-largest oil trader—with operations in forty-two countries. The corporation’s charitable arm, the Trafigura Foundation, prides itself on “making a real difference by creating genuine, positive and lasting changes in the societies, communities and projects it supports.”

Not in Abidjan, however. En route to its eventual home in the capital of Ivory Coast in 2006, the waste—a putrid black slurry of oil refuse containing caustic soda, sulfur, and hydrogen sulfide—traversed the globe. It started in Houston, Texas, and stopped in Estonia and later Amsterdam, where port officials insisted the mix was too toxic for dumping and would have to undergo cleansing. But Trafigura “balked” at the $300,000 cost, according to an October 2, 2006, story in The New York Times. The company then sought an easier regulatory climate in Africa. An Amsterdam port official would tell the Times, “We have never handed back or refused waste before. But the crux was that Trafigura refused to pay. If they had, the material would have been treated and there would have been no problem.”

As Trafigura officials hashed out the easiest way to dispose of the slops, an employee named Naeem Ahmed noted, “caustic washes are banned by most countries due to the hazardous nature of the waste.” Solution? McNicol would soon propose that Trafigura hire an outside firm and “pay these guys to take the shit away.” In March 2006, staffer Leon Christophilopoulos suggested, “I don’t know how we dispose of the slops and I don’t imply we would dump them, but for sure, there must be some way to pay someone to take them.”

And there was. In the middle of an August night in 2006, a trucking outfit hired by Trafigura dumped about a dozen tanker truckloads—roughly 400 to 500 tons—of the stinking waste in sites throughout Abidjan, a city with some 4 million people. Soon, local clinics swelled with tens of thousands of Ivorians complaining of nausea, vomiting, skin sores, nosebleeds, and other ailments. A report by U.N. investigators documented more than a dozen deaths that it alleges were connected to fumes from the waste. Trafigura has consistently rejected claims that the waste dumped by the trucker caused illnesses or deaths.

Fast-forward to 2009, when a more metaphorical odor surfaces. In September, as Trafigura negotiates settlements with the Ivory Coast government and Ivorian attorneys to compensate for the illnesses (it later agreed to pay nearly $50 million to some 31,000 Ivorian plaintiffs), the BBC’s Newsnight and The Guardian reveal internal e-mails—first obtained by Greenpeace—showing that Trafigura knew the waste was toxic enough to be banned in many countries. Trafigura’s lawyers, the powerhouse U.K. firm of Carter-Ruck, quickly convince the British High Court, in a secret September 11, 2009, injunction, to prohibit any public mention of the most revealing document, a scientific analysis of the waste, bleakly titled, “RE: Caustic Tank Washings, Abidjan, Ivory Coast.” Among other revelations, the draft analysis, commissioned by Trafigura, states that the chemical compounds in Trafigura’s waste “are capable of causing severe human health effects,” such as “headaches, breathing difficulties, nausea, eye irritation, skin ulceration, unconsciousness and death . . . . All of these effects were as reported in this incident.”

The court’s “super-injunction,” an increasingly popular device used in the United Kingdom’s litigator-friendly libel cases, prohibited naming Trafigura. The order even prevented mentioning the report in British Parliament. When The Guardian wrote that a member of Parliament, despite the ban, mentioned the report on the floor of Parliament, Trafigura threatened to sue and demanded the story be deleted from the Guardian’s Web site. “There was lots of legal bluster on the way,” Guardian editor Alan Rusbridger told CJR, but “we never took anything down.”

Throughout press coverage of the dumping story, according to a September 16 Guardian report, Trafigura “launched a libel case against BBC Newsnight, forced an alleged correction from the [London] Times, demanded the Guardian delete articles, and yesterday tried to gag journalists in the Netherlands and Norway with legal threats.” But rather than enforcing quiet, Trafigura’s maneuvers unleashed a viral social media protest across the globe, via Twitter.

At 9:05 p.m. on October 12, Rusbridger sent out an initial tweet: “Now Guardian prevented from reporting Parliament for unreportable reasons.” After that, Rusbridger recalls, “The story built and built on Twitter, feeding back into mainstream media and Parliament itself. If Trafigura had hoped to use libel laws and PR firms to keep a low profile, this had spectacularly backfired.” On October 16, under a blizzard of tweets and blogs, Trafigura withdrew its injunction. As Trafigura’s lead attorney on the case, Adam Tudor, explained in an e-mail to CJR: “the injunction was lifted (by consent) because the report had entered the public domain elsewhere and there was no longer any purpose in continuing with it.” What the media have called a cover-up was simply a routine injunction to protect a document that was “confidential, legally privileged, and which had been obtained unlawfully,” Tudor said.

Trafigura’s initial success, and subsequent failure, in preventing media coverage cuts both ways on press freedom. It clearly shows the increasing power of corporate litigants to use legal action and threats to stifle unfavorable reporting in Great Britain. “I think it’s a remarkable case,” says Mark Stephens, a prominent U.K. attorney who represents nongovernmental organizations and media outlets. Trafigura “used and abused our libel laws; they made it clear to anyone that wants to cover Trafigura that they’ll have a fight on their hands. It’s clearly going to have a chilling effect.”

Yet the Trafigura case may lead to a widening rather than a winnowing of press freedoms in the United Kingdom. Prime Minister Gordon Brown and Justice Secretary Jack Straw are leading a movement to rein in secretive super-injunctions, which Brown called “an unfortunate area of the law.”

And the Twitter revolt and resistance by media outlets such as The Guardianand the BBC suggest a new brand of response to media suppression. The ubiquitous nature of emerging technology makes it increasingly difficult to prevent information from getting out. As the Guardian’s Rusbridger put it, “The story had been grumbling away in newspapers and on TV for months . . . without really catching fire. The backlash from Twitter engaged a very large public. I’m guessing an audience of two to three million. I would say it had a significant effect.”

In the U.K. now, says U.S. press freedom specialist Peter Scheer, executive director of the First Amendment Coalition, “Whenever they say you can’t print, you can still put it online,” and it’s hard to trace back to the individual. “They can still make somebody very uncomfortable,” he adds, “but there’s nothing they can do to prevent it getting out.”

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Christopher D. Cook is an independent journalist in the United Kingdom and the author of Diet for a Dead Planet: Big Business and the Coming Food Crisis, published in 2004.