Comments on: Did Stephen Fry and Twitter really score a victory for free speech?

By: Eddie

Eddie — Fri, 16 Oct 2009 13:35:13 +0000

I don’t really care about Stephen Fry’s thoughts on anything, but I lived in Abidjan for years and I do care about the people that Trafigura harmed. Imagine having the smell of hydrogen sulphide in your house all day for months. Lest we lose point, this was all about a company which dumped dangerous toxic waste in open dumps in a large, densely populated city. Whether it was twitter (and I was using the #trafigura tag like there was no tomorrow) or something else, I don’t care, but Trafigura do not deserve to be protected from hard questions.

By: Charles Marsh

Charles Marsh — Thu, 15 Oct 2009 00:13:42 +0000

Your legal trainer’s question isn’t entirely appropriate. The question is: What’s the difference between libel for a professional writer and libel for someone socialising online? The answer to that one is that the law may not apply equally. Mr Justice Eady has previously made the analogy of a service like Twitter being more like a chat down the pub.

http://www.out-law.com/page-9330

Anyway, this is about contempt of court. To be in contempt, you would have needed to know what the injunction prohibited. But, the injunction was secret, restricted to the legal departments of newspapers and broadcasters that had been contacted by Carter-Ruck.

As for Baby P, shortly after the story broke, almost all the details were available on the web. The same applies to the injunction relating to ‘Jenny’ and the one for the blackmailed royal. In none of those cases did the Twitterpocalypse happen. I think the reason it didn’t happen is the same reason the answer to the question in the title is no.

The outcome in this story would have been the same without Twitter. Twitter just made it happen more quickly. In that respect, Twitter is a weather vein, showing which way the Internet wind is blowing. This time, it was all blowing against Trafigura and Carter-Ruck. That, in turn, was a mirror of the offline sentiment. In the other three examples I cited, there wasn’t the outrage over secrecy or the feeling of injustice, and so there was far less desire to know the details or pass them on.

We’ll have to rely on people exercising responsibility as a collective. I don’t think even Mr Fry can change the human nature of his audience simply by asking them not to be naughty.

By: milliganp

milliganp — Wed, 14 Oct 2009 13:43:23 +0000

Barry, given the obvious sanity of your final paragraph and your experience in mainstream journalism, perhaps you could bring your experince to bear on your colleagues who produce sensationalist, lightweight and content free new items on the PC Pro website.

By: Kris Jones

Kris Jones — Wed, 14 Oct 2009 12:52:24 +0000

The law does indeed apply online as much as it does offline, As Dave says above, there are a number of unique factors in this case that separate it from the general mire of libel actions and prior restraint injunctions.

It has now emerged that for the last six weeks or so the press has been subject to a “super-injunction”. Such injunctions are highly oppressive because they not only prevent the press from reporting the issue in question, but also inhibit them from saying that an injunction is in place, who sought it and why. There’s a good timely explanation of such injunctions in the current issue of Private Eye under Legal News.

The question that appeared in the House of Commons Order Paper effectively exposed the fact that a super-injunction was in place under cover of parliamentary privilege. The order paper is a public document that anyone can obtain or view online. Unfortunately, Carter-Ruck took the view that reporting on the existence of the question would be in contempt of the super-injunction. It appears they managed to persuade a judge, probably in his pyjamas, to confirm their view. The only thing the Guardian was allowed to say was that action had been taken by Carter-Ruck.

Bloggers were first out of the traps in linking to Parliament’s website showing the question. There was little risk in them doing so since by then they were referring to a document already in the public domain. This was followed by several twitterers (for want of a better word) who linked to blogs and the question. Stephen Fry was somewhat late to the party, but given his numerous followers, his intervention garnered substantial attention.

The real issue here is the doctrine of prior restraint and the use of super-injunctions. In most cases newspapers should be allowed to publish and then be sued (the “publish and be damned” doctrine). Super-injunctions should only be used sparingly, perhaps in a small number of blackmail cases. Hopefully the precedent set by this case will diminish the use of super-injunctions. Perhaps the question to Jack Straw may also lead to a government announcement on reforming the use of such injunctions.

By: Simon

Simon — Wed, 14 Oct 2009 12:28:09 +0000

I though this would be linked, here is the press release by CR:
http://www.carter-ruck.com/Documents//Trafigura-Press_Release-13.10.2009.pdf

By: Simon

Simon — Wed, 14 Oct 2009 12:26:33 +0000

Whilst it is great that the gagging order was overturned, none of the press seem to have mentioned the press release by Carter-Ruck yesterday which explains that the injunction had been in place since September and that it was a consequence of this that The Guardian couldn’t report on the question in parliament. Carter-Ruck don’t seem to have intended to have stop reporting of parliament and would have been willing to change the order immediately if The Guardian had asked them to.

By: Daniel

Daniel — Wed, 14 Oct 2009 11:56:20 +0000

I agree with David, but with the sheer number of celebrity-obsessed idiots on there, it is only a matter of time before some serious damage is done in a different context.

By: David Wright

David Wright — Wed, 14 Oct 2009 11:05:55 +0000

I think the difference in this case is not the gag on the oil story, but that they tried to gag the reporting of parliament. That is a whole other kettle of fish.

If the problem was about Baby P and his family and there was a gagging order, then the MPs concerned should have used the official euphamism.

We’ve seen that gag orders and agreements to keep names out of the press – like the American journalist held hostage, and whose bio on Wikipedia was edited to keep it out of the public eye, until he was released – can and do work and they have their place.

But gagging the reporting of Parliament, especially when the details would be available for all to read in Hansard, is plain silly and asking for a good hiding from those with a bit of common sense…