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.”