Barbra Streisand Strikes Again
By The Economist
Thursday, October 15th, 2009 @ 12:42AM
Press freedom and the internet: A gagging order backfires
THIS week a national newspaper ran a fascinating story about absolutely nothing. The Guardian reported on its front page on October 13th that a question had been tabled by an MP in Parliament, but that the newspaper could not reveal “who has asked the question, what the question is, which minister might answer it, or where the question is to be found.” The reason, it explained no less cryptically, was that “legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.” The contorted language was the result of a “super-injunction”, an increasingly common form of gagging order that forbids the media not only from reporting certain information, but also from reporting that they have been forbidden from reporting it.
The gag in question was granted last month at the request of Trafigura, an oil firm, to prevent publication of the details of a report related to the dumping of toxic waste in Cte dﾒIvoire. Trafigura’s lawyers at Carter-Ruck, a firm that specialises in shutting up newspapers, warned the Guardian that mentioning the injunction would place it in contempt of court, even after it was referred to on October 12th in Parliament. Yet proceedings in both Houses have long been reported under privilege – that is, without fear of prosecution for contempt.
Minutes after the Guardian’s bowdlerised article was published online, internet sleuths found the censored material on the Parliament website and published it on their blogs and in their tweets. By lunchtime, shortly before several newspapers were due to challenge its position in a High Court hearing, Carter-Ruck lifted its opposition. The firm and its client were left to observe an example of what bloggers call the “Streisand effect”, a phenomenon named after the unfortunate singer whose efforts to block publication of an embarrassing photograph served to spread it around the internet at once.
The web is creating awkward leaks in the gagging orders issued by English courts. Bloggers are too numerous and too poor to be sued, and many of the servers that host their libellous musings are based outside England and Wales, and are therefore beyond the reach of English courts. The same applies to foreign media. The internet means that “trying to prevent things being said in one country is like the little Dutch boy holding his finger in the dyke while water is pouring over the top,” says Mark Stephens, a media specialist at Finer Stephens Innocent, a law firm.
Britain’s libel laws are also under pressure from foreign governments, which are growing frustrated with London’s role as a “libel-tourism” destination. English libel law goes easy on the claimant, assuming that material written about him is false unless the defendant can prove otherwise, the reverse of the position in America. Nor need claimants prove actual damages: potential damage is enough.
In 2005 Rachel Ehrenfeld, an American author, was fined $30,000 ($54,600) plus costs by an English court over a book that had sold 23 copies in Britain. In response, American states have passed laws allowing their courts to refuse to enforce foreign judgments if the countryﾒs free-speech provisions are insufficiently sturdy. On October 12th California became the latest to do so. Despite these pressures, English courts are clamping down harder, granting secret super-injunctions to avoid giving internet rumour-chasers any crumb of information. Over the past three years or so, secret injunctions have spread from the family courts to cases involving celebrities and now companies: Mr Stephens reckons that between 200 and 300 are in force at any time.
These days judges lean towards granting pre-emptive injunctions before publication rather than forcing plaintiffs to sue after the story has come out, notes Padraig Reidy of the Index on Censorship, a freedom-of-expression outfit. “The concept of ‘publish and be damned’ doesn’t hold much sway in the Royal Courts of Justice at the moment,” he says.
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