BLOG: Jon Bloor on the Guardian's gagging order and Twitter

The link was to a Guardian website article stating that the newspaper had prevented from reporting parliamentary proceedings on legal grounds and that all they could report was the name of the solicitors who had obtained the order for their clients, Messrs. Carter Ruck.

Within minutes the original message was being forwarded (or "retweeted") by several other people to their Twitter followers.

Evidently a number of civil rights lawyers use Twitter, and were determined to get to the bottom of the mysterious gagging order.

The right to report the proceedings of parliament has been enshrined in law since the passing of the Bill of Rights in 1689. The principle has been reiterated over the years (including by Lord Denning in the Blackburn v DPP case in 1971). This seemed like a huge derogation from this fundamental principle and sparked a huge debate on Twitter.

Within 30 minutes the next installment came through with the Tweet:-

"CarterRuck solicitors gagged the Guardian but you can get the missing info here..." with a link attached.

This link was to the official parliament website, listing the questions for oral or written answer beginning on Tuesday 13 October 2009. Highlighted was a question to be asked by Paul Farrelly, MP for Newcastle-under-Lyme:-

"Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura."

Various links to the previous BBC coverage of the alleged dumping incident quickly followed together with a raft of speculation and comment.

By Tuesday morning the "trending topics" on Twitter were littered with references to the gagging order and Trafigura - although no official confirmation was available that this was in fact the subject of the gagging order.

The Guardian website and the Twitter feed of its editor, Alan Rusbridger, then reported that the Guardian had fixed a time for a High Court hearing at 2pm to challenge the assertion by Trafigura's lawyers that reporting parliamentary proceedings in the case could constitute contempt of court.

The overwhelming publicity had obviously taken its toll though and at around 1pm Mr Rusbridger tweeted:

"Victory! #CarterRuck caves-in. No #Guardian court hearing. Media can now report Paul Farrelly's PQ about #Trafigura. More soon on Guardian"

Within a couple of minutes the whole story was featured prominently on the Guardian website.

I'm sure that there will be plenty of comment by lawyers about the legal issues raised by the case. This isn't my area of law so I don't consider myself qualified to comment, and in any event this kind of analysis is best left until all the facts emerge (including the grounds for granting the original injunction).

From my perspective the startling revelation is the power of Twitter, blogs and other social media in this situation. Have we reached a stage where technology has overtaken the legal process?

This particular case was largely of interest in the UK, but with any story of global interest it is difficult to see how this kind of order can realistically be enforced in all jurisdictions.

In this instance I would argue that the right to report parliamentary proceedings is of fundamental importance, but could the "power" of these networks also lead to information being disclosed when the confidentiality is in the public interest (in the case of terrorism investigations etc.)?

Above all, this has to be a lesson in how counterproductive this type of approach can be if it is not handled correctly. The issue has now been reported by the Guardian in full anyway - and to an audience which must be vastly bigger than if the order had never been applied for!

* Jon Bloor is a solicitor at Lees Solicitors