Monday, 14 June 2010

Trafigura Advert Decision: The Facts

What was the decision made?  The MSM and Dr Busch seem to have very different views.  In this post I make no comment of any sort about the decision but I do report the facts.

The Trafigura advert can be read here.

The Greenpeace complaint here.

The report from the Advertising Authority is online here.

Everything below the line is lifted directly from Trafigura’s English translation of the finding in Dutch.

I give only:

the 6 individual points (a, b, c, d, e, f) within the complaint – bright blue

the Opinion of the Advertising Authority – 12 points in green italics

I fit the complaint point with the appropriate opinion so that you can see easily the response to each complaint.

Finally the opinion leads to The Decision which is in brown at the very end of the piece.

I do not give any evidence: that can be read online.



The Opinion

The opinion of the Advertising Standards Authority

The contested publication must be regarded as an advertisement within the meaning of article 1 of the Dutch Code of Advertising (NRC). Within this context, the Authority takes the ground that the publication contains, on the one hand, factual information about the confirmation on 23 September 2009 of the settlement reached between Trafigura and about 30,000 residents of Ivory Coast, but, on the other hand, implies a public recommendation of Trafigura's goods and services. Especially the texts "Trafigura always aims to give shape properly to its economic and social involvement in the West African region" and "Trafigura is a leading international business enterprise, specialising in oil, minerals and metals" have a sales pitch.

Since this is an advertisement within the meaning of article 1 of the NRC, the Authority is entitled to test the publication against the NRC.

In the reply to the question of whether or not the contested publication is contrary to the NRC, the Authority puts first and foremost that this publication must be considered in its entirety. As regards the various objections, the Authority takes the following grounds.

a. It is suggested wrongfully that a judicial decision has been given in the English proceedings between the Ivorian victims and Trafigura.

Re (a)
When reading the entire publication, the Authority considers it to be sufficiently clear to the average consumer that this publication reports on a settlement between Trafigura and about 30,000 residents of Ivory Coast and a so-called confirmation of this settlement by the High Court in London.
The publication does not contain an explanation of what such a confirmation means under English law, but that does not mean that the average, attentive consumer who takes cognisance of the publication is set on the wrong track, especially in the sense that he would think that a judgement has been passed by the court.
Insofar as the heading of the advertisement "Ship's waste of Probo Koala could not cause any lethal or other injuries – confirmed by the High Court in London" would create the impression that a judgement has been pronounced, this impression is sufficiently removed by the full text of the publication.

b. It is suggested wrongfully that Justice MacDuff has said that the waste from the Probo Koala could not have caused lethal or any other injuries.

Re (b)
Within the scope of the confirmation of the settlement, the publication mentions a "Joint Statement" dealt with "by the court". This "Joint Statement" was submitted with the defence as appendix 2 and reads, inter alia [in English]:
-    "The parties have since August 2006 expended considerable time and money investigating in detail the events in Abidjan in 2006. As part of that process, in excess of 20 independent experts in shipping, chemistry, modelling, toxicology, tropical medicine, veterinary science and psychiatry have been appointed to consider all the issues relating to those events.
-    These independent experts are unable to identify a link between exposure to the chemicals released from the slops and deaths, miscarriages, still births, birth defects, loss of visual acuity or other serious and chronic injuries. Leigh Day and Co., in the light of the expert evidence, now acknowledge that the slops could at worst have caused a range of short-term low level flu-like symptoms and anxiety".
A transcript of the public hearing has also been submitted with the defence (appendix 5), at which Justice MacDuff stated, amongst other things:
-    (see page 3) [ in English]:
"It will not come as a surprise to anybody to know that I have been following what has been happening in the media, both in the newspapers and on television and radio. I have myself witnessed how wildly inaccurate some of the statements have been. It can all be put right with the final joint statement.
Speaking for myself, I hope that the members of the press who have reported this hitherto and who have made statements which now turn out to be wrong will take note of the joint statement. I know what is in it because you provided me with a copy; and
-    (see pages 5 and 6) [in English]:
"Adding my voice to some of what you have just said for my own part, Mr Glasgow, my concern as I read the media reports in recent times was that I knew from my reading of the papers that the experts were quite clear. The slops could not give rise to the sort of symptoms and illness which was being claimed in some of the press reports. I hope that the media will take account of the joint statement and put things right and put things in perspective. I need to say no more, except to underline that, from where I sit and from what I have seen of the papers, the joint statement is 100 percent truthful".

As becomes evident from the foregoing, it is true that Justice MacDuff has not said literally that the waste products could not have caused any lethal or other injuries, but he has emphasised that the "joint statement" is "100 per cent truthful". Since it has been included in the joint statement that the experts – summarising – have not been able to make a connection between the waste products and any lethal or other injuries, the Authority considers the manner in which the contested publication refers to this conclusion of the Joint Statement and to that which – obviously – was noted by Justice MacDuff about that conclusion during the discussion of the Joint Statement in court not to be misleading.

c. The advertisement mentions wrongfully the dumping of ship's waste.

Re (c)
That, in this case, ship's waste is mentioned does not cause the publication to be misleading either. The Authority does not consider it likely that the average consumer, because of the mere concept of ship's waste, would form such an idea of this waste that he or she would not (also) think of waste with possible serious consequences. Within this context, the Authority takes the ground that the publication mentions that this refers to waste products of the Probo Koala and that attention is drawn to a settlement, in which it obviously came up for discussion whether or not the waste products in question could have caused lethal or other serious injuries.

d. It is suggested wrongfully that Trafigura is now completely exonerated from any lack of integrity in its dealings with the Probo Koala affair and that Trafigura is the victim of a 'trial by media'.

Re (d)
In the opinion of the Authority, the publication does not suggest that Trafigura "is now entirely exonerated from any lack of integrity in its dealing with the Probo Koala affair". The publication makes reference to the settlement reached and the fact that the payment of 1,140 euros per claimant does not mean that Trafigura accepts liability. The publication does not discuss whether or not Trafigura has shown any integrity in its conduct where the events put forward by Greenpeace in the complaint under (d) are concerned.

Where Trafigura designates the news coverage of the case as a "trial by media", it clearly reveals its opinion.  In view of this and against the background of the remark made by Justice MacDuff quoted earlier: "I hope that the media will take account of the joint statement and put things right and put things in perspective", the aforementioned designation does not lead to the opinion that the publication is misleading.

e. The advertisement states wrongfully that Trafigura aims to give shape properly to its economic and social involvement in the West African region.

Re (e)
Greenpeace has challenged the sentence "Trafigura always aims to give shape properly to its economic and social involvement in the West African region", stating its reasons for doing so. To this effect, it has submitted a number of documents, including a few internal emails/documents from Trafigura, and drawn attention to various acts which, in its opinion, have been performed by Trafigura, and which it considers no evidence of such social involvement.

With reference to the criminal proceedings pending in the Netherlands in respect of the Probo Koala incident, Trafigura has not gone into the alleged acts and the content of the documentation submitted, other than to deny that Trafigura has acted wrongfully. In view of this and since Trafigura has not provided the Authority, irrespective of the remark in its rejoinder 'that the settlement is in line with Trafigura's policy in this respect', with any handles by which the aforesaid argument can be substantiated, the publication contains incorrect information on this point as referred to in article 8.2, opening sentences, of the NRC. Since the publication may moreover drive average consumers – which may be potential business partners of Trafigura – to take a decision on a transaction, which they would otherwise not have done, it is misleading and therefore unfair within the meaning of article 7 of the NRC.

f. It is wrongfully suggested that 20 independent experts have concluded that the waste from the Probo Koala could not have caused lethal or any other serious injuries.

Re (f)
The conclusion referred to in the publication, i.e. that the waste products could not have caused any lethal or serious injuries, but at most a few short-term, flu-like symptoms and tightness of the chest, is not attributed in the publication to the "20 independent experts"; it states that this conclusion is included in a Joint Statement and "follows a thorough analysis by 20 independent experts". It is neither stated nor suggested that there is any question of a joint investigation or of a joint conclusion of the 20 experts.
That 10 experts were nominated by Trafigura – as argued by Greenpeace – and 10 experts on behalf of more than 30,000 victims by the British firm of lawyers Leigh Day does not mean that these experts cannot be regarded as independent.


Of being contrary to the truth, good taste and/or common decency such as referred to in article 2 of the NRC there is no question in the opinion of the Authority.

The Authority does not find occasion, for the purposes of article 18 (4) of the Regulations concerning the Advertising Standards Authority and the Appeal Board, to circulate this decision as "Alert" in order to bring this to the attention of the broad public.

As regards Trafigura's reliance on the right of freedom of speech, the Authority takes the ground that the present decision, which includes a recommendation to no longer produce advertisements in this manner, does not detract from the right of freedom of speech.

In view of the foregoing, the following decision is made.


The decision

Based on the grounds taken above under (7), the Authority considers the advertising publication to be contrary to the provisions of article 7 of the NRC. It orders the defendants to not produce advertising in this manner again.
For the rest, the Authority dismisses the complaint.


1 comment:

  1. Thanks for continuing to post on this Calum. Keep on keeping on!