Trafigura: timeline of an outrage

The Trafigura business should make us feel good today. A not inconsiderable blow was struck for free speech, and it couldn’t have happened without the internet, or more precisely without social media networking.

That much is fairly indisputable.

But – and I hate to sound like I’m throwing a bucket of cold water all over your twittery love –  what exactly was the alchemy that transformed a Twitter trending topic into an admission of defeat by one of the world’s ghastliest legal enterprises?

Let’s summarise the timeline:

May-September 2009 – the Trafigura scandal unfolds, Carter-Ruck starts doing its hush-work, against the BBC Newsnight team for starters, and to be quite honest no-one notices a thing.

11 October 2009 – Carter-Ruck seek an injunction forbidding the  Guardian (and another paper apparently) from reporting on a question being asked in parliament which will, inevitably, draw attention to the Trafigura scandal.

12 October 2009 – the story that is not a story appears on the front page of the Guardian. Bloggers scent something amiss. Guido Fawkes does his thing and (I believe) is the first person to identify the question that is probably involved. Richard Wilson is, so far as is known, the first person to identify the question that is probably involved.

evening, 12th October – early tweeters on the Trafigura scene that I am aware of include @jackofkent and @dontbefooled. They bash heroically away at it until it starts to spread. Outrage begins to take hold.

c. 9am, 13 October 2009 – the People’s Republic stirs into wakefulness to find Trafigura at number 10 in trending topics, reads up on it, and joins in. But does it really matter that we’re all tweeting about it? I wonder aloud to my tweetmates. Are we not a tiny, self-selecting and slightly odd section of the population? Are we over-inflating our sense of importance here? What can we actually do to Carter-Ruck? How can we actually defend press freedom by sitting  on ergonomic chairs getting cross?

Never fear, says the wise Chicken Yoghurt:

Like blogs, it’s not how many but *who* is reading…

By 10am Trafigura is the top trend, and Carter-Ruck and the Guardian in various permutations follow closely behind. Up to 2pm it stays in the upper half of the trend board, and as of now (4pm) it’s still there, slipping slowly down. Outrage abounds magnificently all day. People run out of profanities with which to dub Carter Ruck. Stephen Fry gets involved. Tweeters from the Guardian spread the news that they are going to court at 2pm this afternoon in an attempt to get the injunction lifted.

11am – The Lib Dems request an urgent question and debate on the press’ freedom to report parliament. The move is carried out by two Lib Dem MPs, Paul Burstow and David Heath. The question and the call for the debate are carefully designed to elicit the same answer as Paul Farrelly’s question, but without mentioning Trafigura, the Minton Report or Carter-Ruck. This means the press can report on their questions, because not even the most myopically reactionary judge is going to grant  an injunction for these:

David Heath:

I would be grateful if you would give consideration to the following Urgent Question to the Lord Chancellor:

“To ask the Lord Chancellor if he will make a statement on the prevention of reporting of parliamentary proceedings by means of legal injunction.”

Paul Burstow:

I would be grateful if you would give consideration to an urgent debate under Standing Order 24 on the freedom to report on Parliamentary Proceedings.

That’s it. Carter-Ruck is well and truly Carter-Rucked. Even if their injunction against the Guardian’s reportage of Farrelly’s question is upheld, they can’t prevent the Guardian or any other outlet from reporting the much more broadly phrased questions of Burstow and Heath. Absolutely nothing except (more) bad publicity will result from seeking to uphold the gag. By the end of the day, thanks to those wretched Lib Dems, the whole story is absolutely guaranteed to be out anyway.

And so:

1pm The Guardian’s editor calls victory. Carter-Ruck has backed down.

I’m sure I’ll be horribly unpopular with all the true twitter believers out there, but doesn’t that slightly strike you as a game change right there between 11am and 1pm? A bit of an old-fashioned, corridors-of-power, meatspace game change? The Carter-Ruck office probably did not, whatever we may like to think, spend the whole morning staring in horror at the Twitterfeed. But they would have learned about the pesky Lib Dems and their demands for debate and answers. They would also know (this is where Twitter does come in) that the documents they were trying to suppress were all over the internet already.

This is what makes the internet a force for change. Not the act of tweeting itself, but what happens as a result. Chicken Yoghurt is right – it’s not how many people tweet, however much of a tidal wave it feels. It’s who’s reading. In this case, Lib Dems were reading. The opinion of thousands has to be matched with critical action by those placed to take it. People forget this in their fuzzy enthusiasm for the power of the internet. It has enormous power, yes, but unless channelled by some external agency it is like the power of a storm over the remotest stretch of ocean, roaring away to itself in the wilderness.

Kudos is due to everyone who tweeted, and enormous kudos is also due, I think, to the Lib Dem parliamentarians and their advisers for providing the channel on this occasion. They recognised the immediacy of the moment, saw they could, for once, actually make a difference, and seized on it.

The trouble is, this leaves us in a bit of a spot. Basically, it is my contention that without the terribly old-fashioned business of two sympathetic parliamentarians placing questions on the House of Commons’ order paper, Carter-Ruck would not have felt sufficiently under pressure to back down. Some power to the people that indicates.

We may not have sympathetic parliamentarians every time. We certainly don’t see responses this lightning from the Lib Dems every time.

To ensure our political life is proof against this sort of outrage we still need total reform of the political system, to make our representatives responsive to our opinions as a matter of course. Otherwise we’ll always have to do this, shout about an issue, big ourselves up and hope someone with some actual power notices, because without them we don’t stand a chance. I don’t think this is a system to be particularly proud of, whatever the outcome today.

41 Comments

  1. Perhaps what you miss is that once it is trending it becomes a tsunami of interest to others and then it becomes “news”.

    Which is why other issues fade into obscurity no matter how hard some people tweet.

    Overall everyone could see it was plain wrong and Stasi like, and joined in like an online resistance movement to share info and keep up the pressure.

    As the core issue was, once the information was mainstream they could not keep it secret any longer. Which was of course the aim.

  2. You call this “Trafigura: timeline of an outrage.” I think there is at least as much dynamite threatening vested interests in the Barclay’s half of the interesting Parliamentary question. If Carter-Ruck are acting for any of the implicated parties there, Carter Ruck can chalk up a half victory in having diverted attention from the Barclay’s matters.

    Time to revive that story in the blogshere? and see if some blog reader or Twitter follower with the power to ask questions which cannot be ducked takes an interest?

    The leverage of bloggers and twitterers may be indirect, but it is real.

  3. well, I think that some credit does need to go to the blogs on this one, Guido especially. I don’t doubt that parliamentarians helped to ensure that CR backed down in the courts, and I know that Staines didn’t have it first, but everyone I know with an interest in the media or politics had heard about this by ten this morning, and most of them who didn’t work directly for a newspaper had got it off Guido or Dale-then-Guido (non-tories included).

    O’course CR were always on to a loser on this one; they’d managed to take on just about every sacred cow there is. The media hates injunctions, guardian readers don’t like it when the the fearless investigative grauniad gets oppressed, the left hates big multinational corporations that crap toxic waste on poor defenceless african countries, libertarians don’t like anyone who threatens freedom-of-speech because they* worship it as a deity, bloggers tend to be anti- the censoring of news and libel lawyers in geneal, and no-one likes Peter Carter-Ruck. The sad thing is that I doubt many people would have got all that worked up about the original offence.

    *ok, ok, ‘we’. There, interest declared.

  4. The thing is, as much as it is laudable that the Lib Dem parliamentarians went into action based on what they’d heard on Twitter, the information became widespread public knowledge because of the blog coverage.

    It’s possible (though unlikely) that this could have gone to trial and the injunction held up by the court, if the information had remained secret. Because of the blogs, we found out all the info behind the injunction and the court battle would have become an exercise in futility and highly unlikely to hold up. Even Carter-Ruck wouldn’t necessarily bother fighting a court battle they know they would lose. Thus, the blogs and twitters almost definitely would have had an effect, with or without the parliamentarians.

    So I think it[‘s probably equal measures. You’re right to point out that all the blogs and twitters can do is give the guys with the real power a bit of an elbow, but that’s a bit of an elbow we never had before.

    1. Indeed, the whole point is that this was a double-sided action. Hence my overblown (ha!) storm metaphor.

      Having said that all, did you see Rusbridger on the news last night? He didn’t seem in all that much of a rush to credit Twitter, which makes me wonder if there was actually a legal background to dropping the injunction of which we have no wot.

  5. I think Twitter is a great medium for expressing dissent. I for one would have been ignorant of Trafigura’s gagging of the Guardian had not the first three tweets on Twitter when I looked at it today had the hash tag #Trafigura.

    Ultimately, you might be right – maybe the Twitterverse didn’t change anything – but it also made many people aware of an attack on UK press freedom. And I think that is important!

  6. Interesting post.

    The fact is that politics is all about building and then maintaining pressure, and it seems to me that social media provided the ammuniation for the lib dems to fire at the Carter-Ruck. The victory wouldn’t have been possible without both performing their roles.

        1. Point taken nevertheless.

          For some reason, possibly connected to laziness, I didn’t know that. Mea culpa.

  7. Jennie’s right – it’s Richard Wilson who deserves the credit for the original research. It’s now got to the stage where Nick Higham of the BBC is citing Guido bloody Fawkes as the fons et origo of this one.

  8. Having blogged on the Libel issue on Saturday 3rd October today was truly a beautfiful day to see one of these Super Injunctions bite the dust. All praise to all those involved. It is a pity that some of the others extant cannot be identified, my bet is on a large property company close to government trading while insolvent.

  9. I’m not so sure it would be a good thing for the twittermob to have the power to shape events the way Heath and Burstow did. This is the sort of thing MPs are for and we would like them to do it more often.

    I’m just wondering about the next trending topic that might be committing a genuine defamation.

  10. So what you’re saying is that it was you who killed the story? Your actions truncated its time as a trending topic, and therefore reduced the number of people who actually read the report?

    Luckily that’s not true, otherwise I’d have yet another reason to dislike Lib Dems😉

      1. Carter-Ruck untrended the story by removing the threat of injunction. This caused people to tweet about victory for a while and then stop tweeting about the affair altogether. Simple damage limitation; nothing to do with Lib Dems.

        1. Ok, so what – in your opinion – did make Carter Ruck withdraw the threat of injunction?

          Because, as I say, I really doubt it was to do with the Twitterverse reading a document, for the simple reason that there aren’t enough of us to matter. We may feel all fun and important when we’re twittering at each other, but get us out on the streets and we’d look like the small, niche, non-newsworthy pressure group we are.

          Of course, it may be fairer to suggest that C-R’s problem was really with *specific people* reading the document. But in that case we’re back to Chicken Yoghurt’s point again (and mine).

  11. “Ok, so what – in your opinion – did make Carter Ruck withdraw the threat of injunction?”

    Like I said, damage limitation. When your name is on everyone’s lips, the sooner you can get it off, the fewer people will remember it.

    1. But, like I said, Twitter users, blogosphere inhabitants and the like are not “everybody”, whatever it may feel like. There just aren’t enough people on Twitter for that to be a realistic fear. What matters, as Justin said, is not how many of them there are, but *who* they are. The problem for Carter Ruck is not that there are too many people reading the Minton report. I’d be surprised if more than a couple of thousand read it. The problem for Carter Ruck is that they include the *sort of people* who can do things like put questions on the House of Commons order paper, which they then do. The minute the questions were on the order paper, the Twitter campaign had worked.

      You can’t have it both ways. If your position is that the “everybody” of the Twitterverse/blogosphere was what mattered, then it must follow that the actions of the parliamentarians amongst them mattered most of all, because you can only argue that the “everybody” mattered by means of significance, not weight of numbers. My position is simply that you can’t have one without the other. The Lib Dem MPs wouldn’t have been prompted to act without Twitter, and the Twitterers wouldn’t have been able to scare off Carter Ruck without being able to, as Stu says, elbow people like Lib Dem MPs.

      1. “you can only argue that the “everybody” mattered by means of significance, not weight of numbers.”

        That’s a strange assertion. Please elaborate.

        I’m not saying that the actions of the Lib Dem MPs are insignificant, I’m just saying that they were not what caused Carter-Ruck to withdraw the injunction.

        Let me put it this way: what makes you think that Carter-Ruck were intimidated by David Heath and Paul Burstow’s questions when they obviously didn’t care about Paul Farrelly’s?

        1. You’re not following what I originally said. They weren’t “intimidated” by either question. Their original aim was obviously to stop the first one being asked. But then they were trumped by two further questions which would elicit the same contents as an answer, and which they would be (I think we can presume) unable to get the same injunction for. Therefore the first injunction became worthless. There was just no point defending it.

          “Please elaborate.”

          However much we may like to think it is, Twitter is not actually a gathering point for anything even sidling within spitting distance of a majority of the population. No-one’s ever going to gather sufficient numbers to effectively storm the Houses of Parliament through Twitter. The segment of the population that reads newspapers, cares about stuff like Trafigura and is on Twitter is not important through sheer weight of numbers. It’s important because as a segment it is likely to contain influential people. I don’t think this is a particularly controversial assertion.

        1. Yup, indeed.

          Maybe we should look at it like this. There are three possible factors which may have fed into the proximate cause for C-R dropping the injunction.

          1. A Twitter campaign, taken up by unprecedented numbers of Twitterers including people with a long reach like Stephen Fry, backed by the stuff assembled on Wikileaks. This made clamping down on reportage far less effective in any case.

          2. The Lib Dem question and call for debate. This specifically rendered the original injunction entirely useless because the press would be able to report on those questions even if the Farrelly injunction was upheld.

          3. Possibly some extra legal dimension of which we have no wot. I put this in because the original injunction seems so dodgy I wouldn’t be at all surprised to find that it wouldn’t stand up in an appeal court.

          We can’t quantify the impact of 3, but we can at least sequence the impact of 1 and 2. The point at which the injunction became useless, not just less useful, not just generating more bad publicity than it was worth, but utterly useless, was the point at which the Lib Dem questions went on the order paper.

          For an analogy, by the way, consider the Iraq war protests. A similar sense that this was a protest in unprecedented numbers. If anything even greater fury. Terrible, terrible PR for the government. Discredit all round. And on they ploughed, because nobody in a position of power would or could do anything to stop it.

  12. “But then they were trumped by two further questions which would elicit the same contents as an answer, and which they would be (I think we can presume) unable to get the same injunction for.”

    The only reason I can think of that they wouldn’t have been able to get the same injunction for the two further questions is because the information surrounding the case was already widely available.

  13. The people couldn’t stop the Iraq war because stopping the Iraq war involved physically moving soldiers in the Middle East. Whereas stopping the suppression of information involves making that information available. People on the streets can’t physically move soldiers in the Middle East, but the internet can make information available.

  14. @15 – “The only reason I can think of…”

    But I’ve suggested another reason in my original post. I suggested that they wouldn’t be able to get the injunctions because there was no mention of Trafigura, Carter-Ruck or the Minton Report in the Lib Dem question. That was not the case with the Farrelly question. A judge would have absolutely no basis on which to grant an injunction because the relevant matters weren’t mentioned.

    @16, hm, I suggest you are moving your goalposts around here. Your original assertion was purely and simply that C-R withdrew the injunction to close down the bad publicity they were getting. I was giving an example of another protest which involved the mother of all bad publicity and which still didn’t work. Now you are suggesting (I think, more realistically) that information availability was the important thing, not the protest per se. Very well, then I agree the Iraq analogy is not in point.

    Assuming we have dealt with the bad publicity red herring, in that case, we’re left with assessing the relative impact of the availability of information *by itself*, and the impact of the availability of information *once taken up by parliamentarians*. I think the twitterverse/blogosphere is currently placing too much weight on the impact of the availability of information *by itself*. In reductio ad absurdam terms, if it was that easy, the injunction would have been withdrawn as soon as the report went onto Wikileaks. So obviously it’s not just *availability* of information that affected Carter-Ruck’s decision.

    Now at this point either: (1) you’re going to try to tell me that you know the critical number of people whose knowledge of the affair would be necessary for C-R to withdraw their injunction, and you can prove that number was reached at five to 1 yesterday afternoon or (2) we will agree that some *sequence* of events happened over course of yesterday morning that had not happened before that pushed C-R over the edge.

  15. Rather a lot of this seems to have gone arse about face. What was Carter-Ruck and by extension Trafigura trying to hide, and from whom? People hearing about the Minton report was only a problem if the right people got to hear about it, as Alix points out. The fact is that the general public – grauniad readers especially – hearing about and reading the Minton report probably wouldn’t make the slightest iota of difference to Trafigura, who are big enough and ugly enough not to care. They’re an oil company. They’re not going to burst into tears because some people don’t think they’re very nice; they’re not meant to be very nice. I doubt, say, Blackwater care too much whether guardian readers think they’re unethical. The PR damage would therefore have been measured in who heard, with the emphasis on legislators and potential clients etc

    But legistators were going to hear anyway. The injunction couldn’t have stopped the question being asked, only reported (and even then not in Hansard). So the ‘right people’ – if we define them as parliamentarians – were going to hear despite any effort on the behalf of Carter-Ruck.

    So why the injunction? Well, from the PR angle one tries to minimise public opinion crises, but ultimately what makes the difference is if your customers decide you’re a twat. If you are a brand, then that’s extremely important (cf Nestlé boycott) but trafigura ain’t.

    So bascially, as far as I can see what happened was that Carter-Ruck managed to make a story only really of interest to grauniad readers and eco-types into a huge story with their stupid injunction. And the reason that happened is becuase they tried to curtail freedom of speech/information, which pissed off the blogosphere who are quite big on the whole freedom to publish thing, it being their raison d’etre. This then made it into a huge story, because the mainstream media thinks that the blogosphere is a lot more important and populous than it is. And C-R backed down because it was a pointless fight all of a sudden. Anyone who was interested had heard already.

  16. “I suggested that they wouldn’t be able to get the injunctions because there was no mention of Trafigura, Carter-Ruck or the Minton Report in the Lib Dem question.”

    Fair enough. We are agreed that without Twitter, the question would have been toothless. I just don’t think the converse was true.

    “Your original assertion was purely and simply that C-R withdrew the injunction to close down the bad publicity they were getting.”

    What’s really important to Carter-Ruck’s core business is not the bad publicity they were getting, but that which Trafigura was getting. I am guilty of having conflated the two in my previous postings.

    Blair thought that the bad publicity about the Iraq war was the lesser of two evils. I guess he thought it was a risk worth taking, given that he had someone lined up for the poison chalice anyway.

    “So obviously it’s not just *availability* of information that affected Carter-Ruck’s decision.”

    Indeed. It’s the *widespread* availability of information.

    “we will agree that some *sequence* of events happened over course of yesterday morning that had not happened before that pushed C-R over the edge.”

    We are agreed about that. I just think that Lib Dem questions were insignificant in that sequence of events.

  17. “…because the mainstream media thinks that the blogosphere is a lot more important and populous than it is.”

    Yes, definitely this. Twitter in particular is still new enough to be a news story in itself, which I think is why everyone (apart, interestingly, from Alan Rusbridger) is laying full credit at its door.

    It’s a good thing in a way, of course. Means we can slip stuff to the MSM for a few years until they catch on😀

  18. You can say that it was the Lib Dem action that was significant and consequently the political system needs change to make such the Lib Dem get a place at the table more.

    However, this requires a bit of mind-reading of Carter-Ruck and his client.

    It reminds me of looking at the expenses scandal and saying we need to go to MC-STV.

    I would want to see the evidence that MC-STV would actually prevent financial scandals before jumping to conclusions

  19. Agree with you Alix on general thrust of your piece.

    People like to believe they are far more important than they actually are, and also that the arcane is irrelevant.

    Often, however, the truth is that the opinions of people — however many — are largely irrelevant, and that in politics and law the arcane is incredibly important.

    This is why the Iraq War example is such a good one. A million or so people standing on a street made them all feel terribly important but they could find no legal or political mechanism to block the war.

  20. Catching up and backreading stuff…

    Chicken Yoghurt is right – it’s not how many people tweet, however much of a tidal wave it feels. It’s who’s reading.

    Of course he’s right. Justin is always right. Except when he’s wrong. But he’s normally right when he’s quoting me (again)😉

    ’tis nice to know our MPs pay attention to stuff, wonder what else was going on…

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