If a tree falls in the forest and there's no one to hear it, can Carter-Ruck ban all mention of the sound?
Super-injunctions raise a worrying question: what else don't we know? Hitler could be alive, and in negotiations to present the Radio 1 breakfast show
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* Charlie Brooker
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o Charlie Brooker
o The Guardian, Monday 19 October 2009
o Article history
The following correction was printed in the Guardian's Corrections and clarifications column, Tuesday 20 October 2009
The column below stated that lawyers representing Trafigura – the oil-trading company involved in a toxic waste dumping scandal in west Africa – had secured a fresh injunction to ban reporting of a parliamentary question on the subject. This was inaccurate: rather, the company's lawyers, the firm of Carter-Ruck, claimed that an existing injunction prevented reporting of a parliamentary question.
As you may have noticed, there was a bit of a kerfuffle last week involving this newspaper, the House of Commons, the oil-trading company Trafigura, law firm Carter-Ruck, Private Eye, toxic waste, Twitter, and a mysterious alien entity known as a "super-injunction". What may have struck anyone with zero interest in media law or basic human rights as a bafflingly dry story was in fact a significant victory for freedom of speech. The irony is that, having won the freedom to explain what happened, "explaining what happened" stretches language itself to its limit, thanks to the presence of the aforementioned "super-injunction" – a legal weapon so profoundly confusing it has the power to warp reality itself.
A super-injunction is an injunction that prevents you from telling anyone that an injunction exists. If taking out a regular injunction is like putting a gag round someone's mouth, whipping out a super-injunction is the equivalent of putting a gag round someone's mouth, then pulling a bag over their head, tying them to a chair and stealing their phone so they can't text for help. Or to put it another way: if a tree lands in the forest and there's no one there to hear it, does it make a sound? No one knows, because thanks to a super-injunction we're not allowed to report the existence of the forest.
Super-injunctions are supposed to protect the privacy of an individual. Let's assume, entirely hypothetically, that someone steals a laptop containing mucky candid photographs of Rodney Bewes and tries to flog them to the tabloids. Before they can print them, an understandably furious Bewes slaps the papers with an injunction preventing publication. Now, at this point it would still be possible for a paper to run a story explaining that Bewes was taking legal action to prevent the publication of racy private pictures – which is still extremely embarrassing for poor Bewes, a much-loved and respected comic actor who doesn't deserve this kind of leering intrusion, even in a hypothetical scenario. Wish I'd picked Kelvin MacKenzie instead, to be honest.
Anyway, all is not lost if at this point Bewes takes out a super-injunction preventing anyone from alluding to the details of the first injunction. This makes the story effectively disappear altogether, thus maintaining Bewes's dignity, not to mention the sanity of the picture desk. The very most the press can do is run a nonsensical story saying: "There's something we're not allowed to tell you, but we can't tell you why."
That's effectively what the Guardian did last week, except that there was no beloved actor, but rather a whopping great multinational company accused of dumping toxic waste off the Ivory Coast, following which a lot of people got rather sick and more than a little upset. In an apparent bid to save face, the company instructed its lawyers (Carter-Ruck) to sail up and down the media coastline, knowingly dumping toxic injunctions. Eventually they went completely berserk and issued a super-injunction preventing the Guardian from reporting a parliamentary question about one of their previous super-injunctions. This was too much for common sense or modern technology to bear. Private Eye printed the question, the Twittersphere went bonkers; soon everyone knew about it, and Trafigura's name was toxic mud. In terms of corporate PR, it was about as effective as appearing on the GMTV sofa to carve your brand name on to the face of a live baby.
Anyway, the Trafigura debacle is one of the very few occasions where the cloaking device of the super-injunction has actually malfunctioned, leaving the hovering mothership visible, which raises a worrying question: what else don't we know about? Literally anything could be going on. Like the mysterious "dark matter" that scientists believe makes up a huge percentage of the universe, an entire alternative reality could be thriving just over our shoulders. Dean Gaffney might be made of staples. Hitler could be alive and well and currently in negotiations to present the Radio 1 breakfast show. Kellogg's could be raising an army of the damned and declaring war on Norwich. How many other "invisible" stories are out there, shrouded by thick legal mist?
God knows. But he's not allowed to tell you.
And never mind super-injunctions – are there other kinds of injunction we don't know about? If you slap a super-injunction on top of another super-injunction, do you get a "hyper-injunction" that makes it illegal to even think about protesting? Can someone get an injunction that prevents your eyes from accurately telling your brain what they're looking at, so half your field of vision is pixelated out? Can you ban reporters from using the alphabet? Come to think of it, are there any additional letters of the alphabet we're not allowed to know about? There could be hundreds. Millions.
What worries me is that all this meddlesome injunctioneering could soon threaten the fabric of reason itself, causing a black hole of logic that sucks everything in the universe through to neverwhere. For the sake of all mankind, I sincerely hope that in future, any corporations trying to cover something up would do the decent thing and simply start strangling journalists and bombing their offices. Same results, less paperwork. Dead men tell no tales. And even if they try, Carter-Ruck can probably issue a gagging order that follows them into the afterlife and kicks their larynx off its hinges.