Carter-Ruck:0 Guardian: 1… but what next?


8:29 pm - October 13th 2009

by Sunder Katwala    


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It is a happy thought that the finest legal minds at Carter-Ruck solicitors will have spent most of today explaining to the equally well-renumerated suits at Trafigura why their tried and tested writ happy playbook has overnight caused the firm even more reputational damage even than dumping that waste off the Ivory Coast and trying to avoid making any settlement for ages did.

And given how blogosphere versus mainstream media debates so often go around in circles while missing the point, it is good to see us all working together on the side of the angels this time.

So I not sure whether it is Carter-Ruck 0 Guardian 1 (own goal; blogosphere assist) or Blogosphere 1 Trafigura 0 but its pretty clear that they are lucky to get nil.

Now, Guardian editor Alan Rusbridger tweets:

Now support BBC Newsnight which is being sued by #Trafigura and #carterRuck over toxic waste expose.

Good thinking! Let’s get those writs flying again. But at least we’re all watching closely now. But, more broadly, wouldn’t it be a good idea to use this enjoyable moment of consciousness-raising to think about how we might sustain our attention and sort out a few deeper issues out too. Others may have a range of ideas. Here are three modest proposals of my own:

1. Couldn’t the editor of several national newspapers jointly write to Carter-Ruck to demand an assurance that they will never take out an injunction against Parliamentary proceedings again?

Failing a satisfactory reply, isn’t it time that the newspapers brought us rather more information about who these Masters of the increasingly Kafkaesque libel Universe are, what makes them tick, to see if some sustained public scrutiny might yet even stir memories of a professional conscience somewhere? Perhaps we could hear some peer group pressure from senior legal profession voices about the value of democracy and the rule of law being rather necessarily intertwined.

2. Perhaps more to the point, I hope Speaker John Bercow will now, with strong all party support, be urgently talking to the Lord Chancellor and other top judges. I don’t know what the legal technicalities would be of the judiciary making clear that no such injunction would or should ever be granted again. But as we’ve now got a new Supreme Court it would be a good moment to establish some good case law, at least on the narrow point of privileged Parliamentary proceedings.

3. The broader issue is the shocking state of our libel laws. I think we need to think about a new campaign too – to educate and inform about the law as it is, and to build an effective campaign to bring about change.

One good start would be a Select Committee public hearings and a broad inquiry. Let’s give Carter-Ruck their chance to come out of the shadows there too. The new blogosphere dynamics offer an important opportunity to animate a cause too often seen as a bit dry and dusty, and a priority only for a fairly narrow liberal media and legal elite.

There would be some important issues to thrash out. I think we obviously need some libel laws. Very few of us either in the blogosphere or the mainstream media believe in a wild west free-for-all where there is no defence against character assassination.

But there is too little public discussion of where the boundaries lie – nor high-profile forums which can bring together expert legal, media and Parliamentary voices with the new citizen activism of the internet elsewhere, in a way which could have an important educative and campaigning effect.

So let’s take inspiration from Carter-Ruck – and work out how they can inspire us to take practical steps to tilt the balance back towards freedom.

————-
cross posted from Next Left

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About the author
Sunder Katwala is a regular contributor to Liberal Conspiracy. He is the director of British Future, a think-tank addressing identity and integration, migration and opportunity. He was formerly secretary-general of the Fabian Society.
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Reader comments


I should have mentioned the PEN/Index libel inquiry – to publish on nov 10th – which could provide a catalyst to try to link up the type of civic campaigning, blogosphere, media and parliamentary/political activity I am suggesting ..
http://www.englishpen.org/aboutenglishpen/campaigns/reformingthelibellaws/

Guardian 1? Hang on it was us bloggers and Tweeters wot won it! 😀

won it for the Guardian though… although I bet Guido Fawkes hates the idea of that

c’mon Sunny

The boy Guido done well on this one … however much you may dislike a bit of bipartisanship, sometimes we are on the same side.

Perhaps its Christmas Day 1915 out here … the lion shall lie down with the lamb or something

One thing that worries me is all the gleeful reporting about the impact of twitter. Twitter is a single company, and all the tweets are in a single, gaggable place. i assume they aren’t set up to evade legal challenges in the same way that wikileaks or the pirate bay are. Granted, the international aspect makes it a bit harder, but there seems no theoretical reason why Carter Ruck couldn’t drag twitter into court and stop people writing about them.

Sunny, you missed the point. The Guardian were subject to a gagging order regarding Trafigura’s conduct, thus Carter-Ruck used that gag to prevent the Guardian from repeating words printed on parliamentary papers.

Link:
http://www.guardian.co.uk/media/2009/oct/13/trafigura-carter-ruck-gag

Quote:
“Earlier, Trafigura’s law firm had refused to alter an existing blanket court order banning the Guardian from mentioning Trafigura’s recourse to the courts. This refusal was despite the publication on parliament’s official website of Farrelly’s questions revealing the facts.”

So Carter-Ruck’s acts were comedic. The ban only applied to the Guardian — as an extension of the previous gagging order — but everyone else was free to take the piss. The real “What Next?” is who gets fired at Carter Ruck.

In the UK, we endure genuine censorship problems owing to our libel laws. But this case is irrelevant to the resolution of that problem.

BBC Newsnight being sued for libel by Trafigura? Bring it on, because that case might support the argument for libel law reform.

Further to my previous comment, it should be noted that nobody who revealed information about the Trafigura/Carter-Ruck/Guardian gagging was under legal threat. The gagging order only applied to the Guardian. There were no anti-censorship heroes.

A couple more points from the gloomy side of it all:

– Until the injunction was withdrawn, none of the mainstream media mentioned the situation. Presumably if the Guardian was able to print its nudge-nudge article, all the rest should have been able to do something similar. More so, the international media. Why didn’t they? How long would it have taken for the storm in the blogosphere to force them into action?

– This case is the exception, not the rule — the writ that got away, because the parliamentary angle let the Guardian kick up a storm. But at least a dozen times this year the Guardian has been hit by super-injunctions, that stop them even printing that they have been gagged. We have little idea what most of those are about.

Charlieman

Up to a point. You are right on the legal issues.

It is also clear that The Guardian in effect successfully baited Carter-Ruck, as a way out of the super injunction trap, as Rusbridger more or less admits in this audio, by asking them whether they objected to the reporting of the Parliamentary question put. Carter-Ruck did – and so The Guardian leapt on that (I presume before the court can give its view, which would surely have been that the PQ could be reported).
http://www.guardian.co.uk/world/audio/2009/oct/13/alan-rusbridger-injunction

So, yes, it would be interesting to know how far up the chain of command the answer that Carter-Ruck did think that reporting the Q would be a contempt went.

But … the question is what happens now. I agree with you that celebrating the defeat of the baddies is an inadequate response.

Eg, there will certainly be universal Parliamentary outrage about this …. so one question is about whether that is only involve thundering on about Parliamentary privilege, or whether it is also about super-injunctions, and/or whether it might get into broader issues of the use and abuse of libel laws.

Apologies, Sunder, for getting the OP’s name wrong. It’s becoming a habit…

Dan: “But at least a dozen times this year the Guardian has been hit by super-injunctions, that stop them even printing that they have been gagged. We have little idea what most of those are about.”

Don’t go over the top about it. Private life allegations are worthy of defence unless there is a compromise regarding work conduct; the UK legal systems encourage blackmail victims to step forward, as is right. Privacy of victims is just good manners.

11. Dick the Prick

Completely agree with point 3.

Dan@9

Useful link, thanks, on the Super-injunctions.

I would be interested to know if anybody has specialist knowledge of all of this what (either substantively, or a devils advocate case) the strongest arguments/cases where a plaintiff might legitimately have an interest in withholding any fact whatsoever about the case, including their own identity …. ‘We would look like bullies in the newspapers’ doesn’t cut it of course.

It seems to me that a specific push against super-injunctions, the right to know who is bringing an action against whom, could do well, whether as a blanket principle (which seems to me right) or, with very specific exemptions if there really is some very compelling argument (on I don’t know what … privacy, children’s privacy or something). Is the issue whether the necessity to publish eg Trafigu vs Guardian … Andrew Marr vs whoever … does itself breach the rights of the plantiff in a way that is proportionate?

I also wonder if there might be MPs prepared to use Parliamentary privilege to break open the information on the number of cases there have been in the last few years, etc.

Dan @ 6, I would love to see Carter-Ruck try to stop Twitter from publishing such tweets – given that Twitter is a US site, hosted on US soil, and owned by a US company, I think Carter-Ruck would be throwing its money away. And I doubt there is any chance of Carter-Ruck stopping UK ISPs from transmitting Twitter data.

Sunder, what makes you think Carter-Ruck has any intention of deciding not to take money in order to help suppress speech? It looks to me as if this forms a big part of its business. From the website:

Where consulted before publication under its MediaAlert service, Carter-Ruck is often able to persuade a publisher or broadcaster to change its intended story or even to decide not to publish it at all. If this does not prove possible then the option of obtaining an injunction to prevent publication will be considered. The firm has an excellent record over recent years of securing injunctions prohibiting publication, particularly of private information. We are often able to secure injunctions in a matter of hours. We also have considerable experience of working (often alongside PR agencies) for blue chip corporations and other clients facing sustained and hostile media interest. …

Sunder, you wrote that,

Eg, there will certainly be universal Parliamentary outrage about this …. so one question is about whether that is only involve thundering on about Parliamentary privilege, or whether it is also about super-injunctions, and/or whether it might get into broader issues of the use and abuse of libel laws.

I think it’s important to look at all these issues and hopefully this scandal will provoke that wider debate. It is all well and good the Guardian and Private Eye banging on about them (as they rightly do) but it really does need a more widespread discussion.

Forgot to add that there is some concern about Conditional Fee Agreements (as discussed here by Ian Hislop). Carter-Ruck of course “has undertaken a very large number of successful libel, privacy and copyright cases under Conditional Fee Agreements (popularly known as ‘no win, no fee’ agreements).”

So Carter-Ruck’s acts were comedic. The ban only applied to the Guardian — as an extension of the previous gagging order — but everyone else was free to take the piss.

As far as I’ve read – if an injunction is handed out – other media orgs that knowingly ignore the injunction can also be sued.

On Sunny@17 – could somebody explain what the spycatcher case development was on that?

ukliberty@15 …
re “Sunder, what makes you think Carter-Ruck has any intention of deciding not to take money in order to help suppress speech?”
– I don’t think I do think this so not sure what it refers to. (I can see that, in this case, reputational damage to C-R might be difficult, since the reputation for notoreity has been cultivated; but a reputation for backfiring buffoonery is good news; and they might not particularly enjoy a concerted upsurge in scrutiny of them). But that is why a more sensible legal framework has to be the answer.


This “The CarterRuck chill” is v.good Guadian 2003 piece on the late Peter carter-ruck’s invention of modern libel industry by ex C-R partner

http://tiny.cc/5Yyoy

As far as I’ve read – if an injunction is handed out – other media orgs that knowingly ignore the injunction can also be sued.

It would indeed be weird if the Guardian and only the Guardian (for example) was prohibited from reporting on Trafigura (for example) with the Observer or indeed any other newspaper being given free reign.

Sunder,

Re “Sunder, what makes you think Carter-Ruck has any intention of deciding not to take money in order to help suppress speech?”
– I don’t think I do think this so not sure what it refers to.

Forgive me but I was referring to this part of your OP:

Couldn’t the editor of several national newspapers jointly write to Carter-Ruck to demand an assurance that they will never take out an injunction against Parliamentary proceedings again?

I can’t envisage a scenario whereby Carter-Ruck says fair enough we won’t do it again…

They might not do it again if judges refer Carter-Ruck to Arkell v. Pressdram each time Carter-Ruck attempts to “secure injunctions in a matter of hours”.

What is more disturbing and unslightly is this battle of wills between two sets of unelected people (media vs lawyers/big business) over who gets to control public opinion.

Free speech is a red herring here. Democracy is screwed as long as the electorate are significantly informed by people with a financial incentive. I can’t believe no-one’s noticed.

Carter-Ruck are not dissimilar to Schillings

In fact, at least three lawyers at Carter-Ruck have come from Schillings, Hanna Basha, Felicity Robinson and Michelle Riondel.

[edited]

20. Guy Aitchison

Anyone interested in the history of libel laws and how they affect the press should check out the Press Freedom session at the Convention on Modern Liberty:
http://www.modernliberty.net/programme/morning-sessions/6-press-freedom

Alan Rusbridger is speaking on the panel along with Nick Cohen, Andrew Gilligan, Fatima Bhutto and Joanne Cash.

It woz the Guardian wot got the ball rolling on this by reporting they had been gagged. They lit the fuse, knowing the bloggotwittosphere would explode.

And that is the formula that can be applied next time. If a news organisation is served with an injunction preventing them from reporting public interest info, report the injunction. We’ll do the rest.

We also need to revisit section 13 of the Criminal Law Act, 1967. Until then, if Carter-Ruck’s partners had behaved after this fashion, they risked being charged with Being a Common Barrator (and as such, this would have made their representation of Trafigura champertous). We cannot revert to common law Barratry, but we do need a Barratry Act to codify when the DPP should initiate action against those frivolously using the law as a tool of disruption.

23. douglas clark

Duncan Stott,

Having just watched Newsnight I fear that the entrenched views of the legal establishment in this country are more likely – in defence of client confidentiality – to attempt to silence us. It is worth contemplating the number of MPs that are of the legal profession before dismissing that out of hand. For it is a gravy train for them.

It is, of course, an utter disgrace, and brings English justice into disrepute.

24. douglas clark

James D @ 24,

After reading a Dictionary, I agree. The misuse of law by lawyers for vexatious purposes should be a good enough reason to have said lawyers struck off…

Sunder,

could somebody explain what the spycatcher case development was on that?

Essential Law for Journalists has a good summary of he case on page 319, but for those that don’t have it here is a quote pertinent to your question:

In June 1986 the Observer and the Guardian newspapers both carried stories reporting the forthcoming hearing in Australia [the attempt by our A-G to restrain publication in Australia – uklberty]. The stories contained brief accounts of some of the allegations. An English court granted the Attorney-General interim injunctions against both newspapers preventing them from disclosing any information obtained by Wright in his capacity as a member of the British security service.

The following year… other newspapers published information from Spycatcher, believing they were not prevented by the injunctions, but the courts held they were guilty of contempt of court.

By the time the two papers were free to publish the material legally, the story was history rather than news.

The ECtHR (<a href="judgment here) found that our government had been right to obtain the injunctions but these should not have been maintained once the book had been published.

The affair made a mockery of our government and our legal system – the Streisand Effect took er… effect even in the absence of the Internet (as we know it) let alone Twitter. You could buy the book outside of England and Wales – e.g. in Scotland – or go overseas to buy it and bring it home.

I imagine sales were improved by the attempts to restrain publication and gag reporting. Famously the Economist printed a page in its UK edition that was blank but for the words, “In all but one country, our readers have on this page a review of Spycatcher, a book by an ex-MI5 man, Peter Wright. The exception is Britain, where the book, and comment on it, have been banned. For our 420,000 readers there, this page is blank – and the law is an ass.”

If a news organisation is served with an injunction preventing them from reporting public interest info, report the injunction. We’ll do the rest.

I think the Guardian played a good game here and got Trafigura and Carter Ruck right where they wanted – while blowing up a huge story that was otherwise unnoticed. Sarah Ditum writes about it here:
http://sarahditum.com/2009/10/13/running-rings-round-carter-ruck/

Of course, this would only work with the Guardian if it was doing a worthy story. Can’t imagine something like this kicking off if an injunction was slapped on to stop reporting on the breakup of a marriage by a Tory PPC…

@4 Sunny – eh?

So why did Guido run the story?

Oh, and he printed the injuncted story too…!

Now, repeat after me….Guido must be ignored, Guido must be ignored, Guido must be ignored….

28. douglas clark

Sunny,

Having read Sarah Ditums’ analysis I am very impressed with how cleverly this game has been played.

However.

The pressure has got to stay on these super injunctions. I would have thought that, in general, the only case for them is to protect a courts’ authority. Sarah mentions the potential to reveal Maxine Carrs’ new identity. That is a matter for the court that originally decided to hide it. If they were to decide on a super injunction then, perhaps, so be it.

But what we have here is very different from protecting the vulnerable. It is an attempt to bend, and in this instance, (for a few hours), break, natural justice in favour of corporations and their shills (Carter Ruck).

I do not think that corporations have either reputations, despite the PR to the contrary, nor the potential for emotional damage.

As a society, we are being extremely stupid to allow the likes of Carter Ruck the freedom to define the freedom of their clients as our ignorance of whatever befell them. We are not stupid, and secrecy is no answer.

If you go to law, you should be accountable. Your name should be on the docket. You are, by the nature of your grievance, placing yourself in a public arena.

And that is how it should be, ceratinly for multi-nationals, etc.

29. douglas clark

I have a suggestion:

Start a campaign to get every lawyer and QC that has had anything to do with Carter Ruck stuck off.

I’d allow an appeal, which is somewhat fairer than they seem to attest to, re the Private Eye evidence.

For the reasons outlined in 24.

“If you go to law, you should be accountable. Your name should be on the docket.”

This sounds like an angle worth following.

The schedules for court hearings are public information, and at least partially available online. Surely it would be plausible to (automatically) collect and index that information, and keep an eye on, say, all cases involving the major newspapers?

Presumably there’d be a lot of uninteresting cases to wade through, and you wouldn’t be able to get much information beyond the name of the plaintiff. Also, perhaps injunctions against newspapers are too last-minute to appear on the online court lists?

31. douglas clark

Dan,

I’d like to agree with you, I really would.

Is anyone able to determine what Carter Ruck’s injunction actually said? Has anyone the faintest idea of what the withdrawal of the injunction by Carter Ruck actually said?

We know that an injunction was approved.

We have no idea what case was made by Carter Ruck to obtain that injunction.

We do not know which Judge heard it. Or when.

Equally, we have no idea of what the words Carter Ruck used to raise that injunction were, do we?

This is secrecy, and it stinks.

32. organic cheeseboard

ok

it’s clear that the libel laws do need some sort of reform. and this is a good article by someone i admire.

but for god’s sake could SOMEONE writing about this stuff PLEASE offer an idea of what those reforms might actually look like? Private eye, Martin Bright, HP Sauce et al whinge on about the laws but in reading up in all these sources i’ve only seen one instance of someone nailing their ‘reform’ colours to the mast – Nick Cohen, who writes the ratbiter pieces in private eye and who thinks we should copy the American laws verbatim (not that he ever says that in the Eye pieces, natch).

Now, I think that’s a really bad idea, given the state of the US news industry and the extent to which smears dominate political reporting and campaigning over there.

So can anyone else offer any substance on this? can LibCon get a lawyer who specialises in libel (as opposed to what we usually get, corporate solicitors parroting the stuff by nick cohen they’ve read in private eye) to write something on it? We all know that there are a lot of apparently shocking examples. But unless someone actually offers some substance in suggesting changes, nothing is actually going to change.

33. douglas clark

organic cheeseboard,

The last person you’d want to ask was a libel lawyer.

Three suggestions:

Firstly, that the fees for libel lawyers are reduced to something a tad below defending someone for pissing up a lane.

Secondly, that the maximum remedy should be a finding of innocence and no damages whatsoever. The finding of innocence to be published as prominently as the original calumny.

That we look again at where the common good lies in all of this. For instance, it does not, it seems to me, lie in the rather odd notion that English jurisprudence has, by nature of publication here, a right to assert itself on a global stage. Publication, these days is global, not national and for a huge body of work it is available anywhere on the planet. The concept of being a bystander could reasonably be an allowable defence against any action whatsoever.

Can we really expect Westminster’s inhabitants to pick up he baton on this when so many are being retained by or hope to get non-exec roles at the likes of Trafigura?

http://www.guardian.co.uk/politics/2009/sep/17/lord-strathclyde-end-trafigura-links

organic cheeseboard@35

Point taken. The motivation for the post was to try to ask how we might move from angry reactions/mobilisations to also constructive pressure. What for is obviously a central question, and perhaps the PEN/Article on Censorship report might help shift the debate that way.

So I would be interested in (1) a debate about what five simple principles for reform might consist of; and (2) what might a reasonable three paragraph description of what constructive reformers might want to see the Labour Party, the Liberal Democrats and the Conservatives put in an election manifesto on this issue … I could see attractions for all of the parties in being seen to engage with the issue if there were sustained constructive as well as reactive pressure. It might particularly appeal to the LibDems, but some of us in the Labour Party would be keen to get on the right side of a civil liberties issue too.

It might be that a commitment to a particular type of inquiry of a modernised form of Royal Commission (eg with public deliberation/citizens jury style input involved) could prove a useful model to thrash out the issues, but it would be good if there were both a commitment to act, and some clear signposts as to what the objectives (more open justice; less expensive)

Various issues arise from points made in this thread and the broader discussion.
1. when the principle of secret justice should or should not apply.
2. the particularly comparatively astronomic cost of defending UK libel cases
(does the abuse of Conditional Fee Agreements mean
whether there could be either professional pressure/codes to effectively establish limits to unacceptable practice are; and/or tougher sanctions within the profession and a different threshold on vexatious cases; and/or regulation against some of the charging practices which seem to have fuelled this).
3. whether the burden of proof is in the right place
4. whether the current approaches to damages is proportionate or not, how those norms are gauged, and how the norm might be shifted if there were a consensus that it is too high either generally in some cases. (For example, the idea of more prominent display of apology/correction but lower cash sums might

Rusbridger told the Convention on Modern Liberty session the cost of defending libel in the UK is 4 times as much as Ireland, and Ireland 10 times worse than the third on the list … with the UK 140 times worse than other/comparable cases ….
Can anyone here source those comparative figures?

In the Press Freedom session at the Convention on Modern Liberty, which Guy linked to earlier
http://www.modernliberty.net/programme/morning-sessions/6-press-freedom

See also, Hislop’s evidence to the Select Committee … where the Judge feels that “It is the most disproportionate piece of litigation I have ever been involved in” and that he is “”absolutely horrified” by the advice given by lawyers apparently to needlessly complicate and increase costs of the case.
http://www.parliament.the-stationery-office.com/pa/cm200506/cmselect/cmconst/754/754we34.htm

36. organic cheeseboard

ah that’s good stuff – thank you both. I’m sorry to sound off but I do get so annoyed by all these crusaders ‘against our libel laws’ who only ever seem to provide (sometimes good) examples of absurd rulings, but no real link to the laws themselves. In a way – without wanting to be rude – Sunder’s comments on price fit into that – I can’t think of a solution and I can’t see capping fees as workable, nice as it sounds. Equally, abolishing the idea of payouts is dodgy isn’t it? I mean, if you are libelled and it leads to loss of earnings, surely you are entitled to sue for them? i agree on apologies being made at least as prominent as originals but I can’t see that ever actually being enforced.

In the Eye this all too often ends up as bashing Justice Eady (in the pieces by Cohen, at least), and he’s undoubtedly made some questionable decisions, but personalising the issue to this extent obscures the more serious issue – that it’s the laws themselves that are the problem.

Douglas touches on this, but the libel tourism thing is also awkward, isn’t it… as in, how do we actually reform the laws to stop cases like the one on ‘Funding Terror’ from happening? Sunny has a recent piece that kind of links to this in discussing hosting of blogs etc. It’s all too easy to say ‘look at this, isn’t it absurd’, as is the wont of Private Eye, but the question of ‘place of publication’ is an awkward one, in’t it – you can’t quite elide the issue by saying that if something wasn’t originally published in the UK, the libel laws can’t apply to it, because everyone would just ‘publish elsewhere’ then print what they like.

And unlike a lot of others I think we do still need libel laws – and that going down the US route is entirely the wrong way to go. journalists are hard enough to believe as it is.

So I would be interested in (1) a debate about what five simple principles for reform might consist of; and (2) what might a reasonable three paragraph description of what constructive reformers might want to see the Labour Party, the Liberal Democrats and the Conservatives put in an election manifesto on this issue

That’s easier said than done in some cases.

Some much needed reforms can be readily expressed in simple principles, such as getting shot of Brunswick and giving ISPs common carrier status, others, even if expressed simply, carry a lot of careful nuances that need to explored in detail.

In particular we have to be careful not to open the door to vested interests who might (and will) see libel reform as a back door means of increasing censorship in certain areas.

At the present time, any wide-ranging review of libel and defamation law will inevitably attract some who will see as a chance to try and sneak blasphemy and the idea that religion can be libelled in through the back door, much as there have been attempts to use the provisions on religious discrimination as back door route to forcing the recognition of certain religious beliefs and practices in law.

(does the abuse of Conditional Fee Agreements mean
whether there could be either professional pressure/codes to effectively establish limits to unacceptable practice are; and/or tougher sanctions within the profession and a different threshold on vexatious cases; and/or regulation against some of the charging practices which seem to have fuelled this).

There was some interesting evidence submitted to the Select Committee on Constitutional Affairs relating to this – see this link and look for media organisations e.g. the BBC. The organisations suggest various improvements.

Undoubtedly anyone who knew about the injunction and breached it would also be in contempt – it wasn’t just the media whose behaviour was restricted.

It’s not just about libel, either: this might have been in connection with a libel case, or it might be in connection with a personal injury case.

I’m sure there is a case for super-injunctions: there are cases you can imagine in which the mere fact of publishing who you are or that you want an injunction would defeat you right from the start.

Maxine Carr might be one example, Venables and Thomson another. Max Mosley, even, comes into that category, if you think about it – if someone’s proposing to expose your private life unlawfully, the only real way of stopping that – an injunction – is compromised right from the start if everyone knows you got an injunction to stop newspapers publishing something.

You only need to use your imagination to think of other cases: a local authority needing to stop publication of a planned raid on paedophiles might think it also needed to prevent publication of its identity (and therefore location), say; a bank trying to stop publication of allegations that it’s bankrupt, but that would be bankrupted anyway if markets knew it was going for an injunction, even if the injunction were granted. Superinjunctions aren’t automatically as awful or unjustified as all that.

But it can’t be acceptable that they extend to restraining publication of parliamentary proceedings, certainly not routinely, and perhaps ever. I’d be amazed if the judge had consciously made such an order: I suspect Carter-Ruck were trying on an extreme interpretation of the order, and that the result of this affair will be that judges now look for express exclusions to allow parliamentary reporting when superinjunctions are sought.

@43 if someone reveals Maxine Carr’s address, throw them in jail for contempt and fine them a fortune. Ditto the others. We don’t need the pre-emptive, Minority Report awfulness.

@44 If someone reveals Maxine Carr’s address, wouldn’t the security implications be at least as great as the contempt? You may not need the pre-emptiveness, but she does.

Someone sufficiently screwed up would consider a jail term or fine to be a fair price to pay to put someone’s address in the public domain. People who have their identities protected upon their release from prison tend to be afforded this (expensive) protection for good reasons. The same reasons why we don’t have the death penalty are the same reasons why such people need to be protected. A consistent argument has to protect that person’s privacy pre-emptively, or not protect it at all.

And let’s just say, purely hypothetically, that there had been a miscarriage of justice, and someone convicted of a heinous crime, and/or demonised by the press, was in fact innocent. And then someone revealed their address. Putting the revealer in prison for contempt would be after the horse had bolted.

Maxine Carr basically counts in your 3rd paragraph – I’m not in any sense suggesting she deserves CrazyMobLynching (and indeed, future generations will look on jailing her for believing her boyfriend’s story as a vile piece of mob-appeasing vindictiveness in itself… well, hopefully we’ll get more civilised over time, at least).

But I don’t see how injunctions help here. If you’re crazy enough to take jail to put Carr’s new identity in the public eye, then the fact that you can be superinjuncted and take *more* jail to put Carr’s identity in the public eye doesn’t really make all that much difference.


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  1. Tim Phillips-White

    RT @libcon: Article:: Carter-Ruck:0 Guardian: 1… but what next? http://bit.ly/rwnAo

  2. sunny hundal

    RT @libcon: Article:: Carter-Ruck :0 / Guardian: 1… but what next? http://bit.ly/rwnAo #trafigura #carter-ruck

  3. oliver gili

    RT @libcon: Article:: Carter-Ruck :0 / Guardian: 1… but what next? http://bit.ly/rwnAo #trafigura #carterruck

  4. Ben Bradley

    RT @libcon Liberal Conspiracy » Carter-Ruck:0 Guardian: 1… but what next? http://bit.ly/2Prdmr #trafigura #carterruck

  5. Ryan Bestford

    RT @libcon: Article:: Carter-Ruck:0 Guardian: 1… but what next? http://bit.ly/rwnAo

  6. Sim-O

    RT @pickledpolitics: RT @libcon: Article:: Carter-Ruck :0 / Guardian: 1… but what next? http://bit.ly/rwnAo #trafigura #carter-ruck

  7. joe laking

    Fantastic article by Sunder Katwala over @libcon about #trafigura and #carter-ruck: http://tinyurl.com/yhtgunk

  8. Tim Phillips-White

    RT @libcon: Article:: Carter-Ruck:0 Guardian: 1… but what next? http://bit.ly/rwnAo

  9. Tweets that mention Liberal Conspiracy » Carter-Ruck:0 Guardian: 1… but what next? -- Topsy.com

    […] This post was mentioned on Twitter by Tim Phillips-White. Tim Phillips-White said: RT @libcon: Article:: Carter-Ruck:0 Guardian: 1… but what next? http://bit.ly/rwnAo […]

  10. sunny hundal

    RT @libcon: Article:: Carter-Ruck :0 / Guardian: 1… but what next? http://bit.ly/rwnAo #trafigura #carter-ruck

  11. oliver gili

    RT @libcon: Article:: Carter-Ruck :0 / Guardian: 1… but what next? http://bit.ly/rwnAo #trafigura #carterruck

  12. Ben Bradley

    RT @libcon Liberal Conspiracy » Carter-Ruck:0 Guardian: 1… but what next? http://bit.ly/2Prdmr #trafigura #carterruck

  13. Ryan Bestford

    RT @libcon: Article:: Carter-Ruck:0 Guardian: 1… but what next? http://bit.ly/rwnAo

  14. How not to stop information getting out « The middle of the line

    […] were used, including the above linked Minton report and the Spectator blog article, Wikipedia, Liberal Conspiracy, Ministry of Truth, Guido Fawkes (grudgingly, but he did find the question first and set the dogs […]

  15. Sim-O

    RT @pickledpolitics: RT @libcon: Article:: Carter-Ruck :0 / Guardian: 1… but what next? http://bit.ly/rwnAo #trafigura #carter-ruck

  16. joe laking

    Fantastic article by Sunder Katwala over @libcon about #trafigura and #carter-ruck: http://tinyurl.com/yhtgunk

  17. Mugging the rich bastard lawyers | Online Journalism Blog

    […] Katwala on Liberal Conspiracy, Carter-Ruck:0 Guardian: 1… but what next?: More broadly, wouldn’t it be a good idea to use this enjoyable moment of consciousness-raising […]

  18. Anthony Painter

    Was going to write a blog post on #carterruck #trafigura #guardian but Sunder/ @nextleft has nailed it. http://bit.ly/116lh9

  19. Sunder Katwala

    engaged #CarterRuck libel reform/what next responses @libcon in threads http://tinyurl.com/yhtgunk and http://tiny.cc/ZNLfp

  20. Charlie Harris FCIJ

    Interesting blog on the Carter-Ruck affair http://bit.ly/cQs3w

  21. Anthony Painter

    Was going to write a blog post on #carterruck #trafigura #guardian but Sunder/ @nextleft has nailed it. http://bit.ly/116lh9

  22. Liberal Conspiracy » What might a 21st century Libel Law look like?

    […] I’m more than happy to rise to the challenge set by ‘organic cheeseboard’ in comments under Sunder’s commentary on yesterday’s events. but for god’s sake could SOMEONE […]

  23. Sunder Katwala

    engaged #CarterRuck libel reform/what next responses @libcon in threads http://tinyurl.com/yhtgunk and http://tiny.cc/ZNLfp





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