the toxic truth - Greenpeace

the toxic truth
the Code is applicable to natural as well
as legal persons. The Criminal Code also
covers the parameters under which crimes
committed abroad may be subject to the
Netherlands’ jurisdiction, stating, in Article
5, that the Code applies to nationals of the
Netherlands that commit crimes abroad.
The prosecutors’ view would appear to apply
a restrictive interpretation of Article 5 as
referring only to natural persons and legal
persons that carry out some commercial
activity in the Netherlands.
The chilling effecT of Trafigura’s aggressive
repuTaTion managemenT
Trafigura’s approach to reputation
management has sparked widespread
concern about the use of defamation
law, particularly in the UK, to unduly
restrict reporting of events that are in
the public interest. Through its legal
and public relations advisers, Trafigura
has pressurized media outlets around
the world to amend or remove critical
coverage, often explicitly threatening
legal action. This prompted the former
UN Special Rapporteur on Toxic Waste
and Human Rights, Okechukwu Ibeanu,
to state that he was:
“ greatly concerned by reports that
the company has filed or threatened
to file libel lawsuits against various
civil society and media institutions
that have reported on the Probo Koala
incident in a critical manner. Such
lawsuits may have the effect of stifling
independent reporting and public
criticism. in this regard, the Special
Rapporteur considers that Trafigura,
as a public figure in this case, should
730
show restraint. ”
The impact on reporting of the case
has been particularly notable in
the UK media. UK defamation law
is considered amongst the most
claimant-friendly in the world, with the
result that a threat of legal action can
be sufficient to stop the publication of
reports. Several of the major media
outlets in the UK that have investigated
and reported on the dumping
of toxic waste in Côte d’Ivoire have
received legal threats from Trafigura. 731
Faced with such pressure, a number
of UK newspapers have agreed to
modify or withdraw articles about the
case, and the tone of UK coverage has
often been markedly different from that
elsewhere in the world.
One incident in particular raised
concern in the UK. On 11 September
2009, Trafigura secured a legal injunction
in the High Court preventing The
Guardian newspaper from making any
reference to a leaked report by John
Minton, a consultant commissioned
by Trafigura in 2006 to investigate
the Probo Koala waste issue. 732 In
mid-October 2009, a UK Member of
Parliament, Paul Farrelly, tabled a parliamentary
question in which he used
parliamentary privilege to make explicit
reference to the injunction. The Guardian
reported online that it could not
report on the parliamentary proceeding.
733 This led to widespread comment
on the internet and through social
media sites, with substantial attention
being focused on the fact that the media’s
right to report without hindrance
on the proceedings of parliament had
been compromised. As a consequence
of the internet activity, the nature of
the injunction became known.
Amnesty International and Greenpeace have
submitted their concerns to the prosecutor. A
company incorporated in the Netherlands must
be said to have Dutch nationality; jurisdiction
over a legal person cannot hinge on the level
of that entity’s activity in the country.
In relation to the Greenpeace submission
and the position of the prosecutor on
the nationality issue, the court said that
jurisdiction was not automatic, but did not rule
on this issue. Therefore, at the time of writing
there was not clarity on the legal position.
On 27 May 2010, Caroline Lucas,
a UK Member of Parliament, raised
concerns in Parliament that the UK
media were being prevented from
reporting freely on the Trafigura case,
stating that “new legal actions concerning
Trafigura have been launched
in the Dutch courts, and are being
reported widely in other countries, but
not here”. 734 Lucas also submitted a
parliamentary motion which referred to
“allegations that UK nationals and UK
firms may have been involved in illegal
waste shipments and a subsequent
cover-up and that payments were made
to truck drivers in return for favourable
witness statements”, and stating that
“this is not being fully reported in the
United Kingdom because of the chilling
effect of the UK’s libel laws.” 735
The motion also called on the government
to launch a full enquiry into the
allegations against Trafigura and to
review the defamation laws to ensure
that this matter could be reported
fully. 736
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Chapter 13