WikiLeaks, Disclosure, Free Speech and Democracy: New ...But the political and legal responses to the success of internet publisher WikiLeaks in the past few years have called into

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WikiLeaks, Disclosure,Free Speech andDemocracy: New Mediaand the Fourth Estate

Jennifer Robinson

Truth is the cry of all, but the game of few.

George Berkeley

The past 12 months have been, without a doubt, the mostexciting in recent history in terms of disclosure of information.The disclosure of information by WikiLeaks, including collat-eral murder, the Afghanistan and Iraq War logs, Cablegate, theGuantanamo Bay files, the spy files and the global intelligencefiles, has meant that WikiLeaks and its editor-in-chief, JulianAssange, have been at the top of international headlines. As aresult of WikiLeaks’ disclosures we have learned more thanever before about corruption and human rights abuse aroundthe world, the nature of diplomacy, the military–industrialcomplex, the extent of misinformation about war, and theabuse of government power and public–private partnerships intraditional government functions, such as intelligence sharing,which are being contracted out to private corporations that arebeyond the scope of regulatory control. WikiLeaks has shown acourageous commitment to the finest traditions of journalism

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and to the role of the Fourth Estate in our democracy, whichhas not only challenged authority and power to achieve greateraccountability, but has also challenged the ‘old’ media to dobetter. This chapter reviews the phenomena of WikiLeaks andother forms of new media, as a part of the Fourth Estate, inmodern democracy.

The traditional or ‘old’ media has always operated on leaks— and journalists, editors and publishers have relied on theprotections afforded them under laws protecting free speech.But the political and legal responses to the success of internetpublisher WikiLeaks in the past few years have called intoserious question the legal regimes related to the disclosure ofinformation, including protections related to freedom of speechand the press, protection for sources and whistleblowers, thealleged need for confidentiality in government, and the justifi-cation for concomitant limitations upon freedom of informa-tion and transparency.

Assange and WikiLeaks are beleaguered by false allegationsof illegal conduct, resulting in lawsuits that threaten Assange’sliberty and WikiLeaks’ continued operation. Assange faces poten-tial extradition to the United States to face criminal prosecutionfor his publishing activities. WikiLeaks is being financially stran-gled, cut off from supporter donations by a worldwide financialblockade of the world’s biggest financial companies: Visa,MasterCard, PayPal, Western Union and, of course, Bank ofAmerica. And yet, WikiLeaks engages in the very same activitiestraditional media have always done as an integral part of its roleas the fourth estate: WikiLeaks speaks the truth about power byreceiving leaked information and publishing that information inthe public interest, so that we can make better-informeddemocratic and consumer choices. The difference? WikiLeaksdoes it bigger and better; with better protections for journalistsand whistleblowers through the innovative technology of theiranonymous dropbox system. WikiLeaks may have pulled off the


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largest leak in history, but the size of the leak does not alter theunderlying act or its legality. While other media organisationssuch as the Wall Street Journal have replicated (to various degreesof safety and success) the WikiLeaks dropbox model, its editor isnot facing prosecution and you can still subscribe to the WallStreet Journal using your Visa or MasterCard.

The rush to silence WikiLeaks relies on the abandonment ofany sustainable legal standard. Faced with the challenges of whatdisclosure of information might mean in the age of the newmedia, we have seen conflicting and inconsistent responsesregarding the legality of WikiLeaks’ operations from someAustralian leaders, working under an even less sustainable USgovernment position. WikiLeaks engages in the same conductthat journalists and media organisations have always engaged in:receiving confidential material and publishing it in the publicinterest. The inconsistent approaches to WikiLeaks rest upon afalse dichotomy between the ‘old’ and ‘new’ media when itcomes to information disclosure and legal protections — adichotomy that is unsustainable and will inevitably have broaderimplications for all media organisations, whether new or old. Theoutcome of the legal battles facing Assange and WikiLeaksprovides a litmus test for government commitment to freespeech and preserving the role of the Fourth Estate in the newmedia age.

The media as the watchdog of democracy — theFourth Estate or the Fourth Branch?

Democracies die behind closed doors.

Judge Damon J. Keith, Detroit Free Press v. Ashcroft 303 F.3d 681

26 August, 2002

The media is the watchdog and safeguard of democracy. Whenopening the press reporting gallery in the British Parliament in1787, Edmund Burke described the role of the media as the




‘Fourth Estate’: it plays a constitutional role in ensuring theoperation of representative democracy by remaining independ-ent of government control, scrutinising government action andholding decision-makers to account by providing the publicwith the information it needs to make informed democraticchoices. Media reporting on government action is central topublic understanding of policy issues and the political process. Alack of information results in a lack of accountability, giving thegovernment, and the powerful lobby groups that increasinglyinfluence democratic process, absolute power. Disclosure ofinformation or ‘leaking’ about government action (and aboutthe actions of increasingly powerful private corporations) to themedia is therefore essential in ensuring the media can play thisrole. As veteran Australian journalist, Laurie Oakes, has said:‘Leaks are the difference between a democracy and an authori-tarian society … The risk of being found out via leaks makesthose in authority think twice about telling porkies, performingtheir duties sloppily, behaving badly or rorting the system.’

Seeking the truth and reporting that truth without fear orfavour is one of the great traditions of journalism. In recenttimes, however, questions have been raised as to whether the‘old’ media continues to — and is capable of — performing therole as the Fourth Estate in our modern democracy. Corporateownership of media organisations (sometimes by the samecorporations who back certain politicians and have interests ingovernment contracts), combined with the economic pressuresassociated with the dying business model of the traditionalmedia, has meant less focus on its traditional role and morefocus on economic interests and the power relationships thatguard those interests. Some argue that the commercial presshave moved from being the Fourth Estate, a notional branch ofgovernment in a democracy to a literal one — the ‘FourthBranch’, where the ‘old’ press is on the inside and therefore nolonger has the antagonistic relationship with secrecy, concentra-tion of power and corruption that is required to properly


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perform its role. Ray McGovern, former CIA analyst and intel-ligence advisor to several US presidents, goes so far as to say:‘The Fourth Estate is dead … captured by government andcorporations, the military-industrial complex, the intelligenceapparatus.’

WikiLeaks is specifically designed to be independent ofthese pressures by being directly funded by the public throughsmall donations, and for this reason itself remains accountableto the public. And through its dedication to the tradition oftransparency journalism — a dedication borne of what Assangesaw as the moribund state of the mass media — WikiLeaks haschanged the media landscape and reinvigorated the FourthEstate.

New Media and the Fourth Estate: WikiLeaks,Assange and their achievementsWikiLeaks has made a remarkable contribution to journalismand to democracy. For this work, WikiLeaks — and its founderand editor-in-chief Julian Assange — have been recognised by aplethora of awards for both promoting peace and for journalism.Nominated twice for the Nobel Peace Prize for his work reveal-ing human rights abuse and the horrors of war, Assange wasawarded the Sydney Peace Price in 2011 for his ‘exceptionalcourage and initiative in pursuit of human rights’ — an awardpreviously awarded to Nelson Mandela and the Dalai Lama.

Other awards include the 2009 Amnesty International UKNew Media Award for exposing extrajudicial assassinations inKenya, the 2010 Sam Adams Award — an award given by agroup of retired CIA officers to intelligence professionals orwhistleblowers who have taken a stand for integrity and ethics— for their WikiLeaks’ work in publishing the Afghanistan andIraq war logs, and the 2011 Martha Gellhorn Pr ize forJournalism, a prize awarded to journalists ‘whose work haspenetrated the established version of events and told an unpalat-able truth that exposes establishment propaganda, or “official




drivel’”. In giving Assange the award, the judges said: ‘WikiLeakshas been portrayed as a phenomenon of the hi-tech age, whichit is. But it’s much more. Its goal of justice through transparencyis in the oldest and finest tradition of journalism.’ In 2011,WikiLeaks was awarded the Walkley for Most OutstandingContribution to Journalism in Australia for having ‘shown acourageous and controversial commitment to the finest tradi-tions of journalism’.

Postmedia Network named Assange ‘Top Newsmaker ofthe Year’ after an informal poll of editors voted that he had‘affected profoundly how information is seen and delivered’. Forthis ground-breaking work, Assange was named by Le Monde asPerson of the Year and by TIME as among the 100 most influ-ential people in the world. Despite being the Readers’ Choicein TIME magazine’s 2011 Person of the Year poll, Assange wascontroversially named runner-up by TIME behind MarkZuckerberg (an announcement that was followed by stingingcriticisms and jokes about the decision: ‘Assange gives you infor-mation about governments and private corporations for free.Zuckerberg gives your private information to corporations formoney — and he gets Person of the Year?!’).

Given that journalism has always operated on leaks, what isso remarkable — and revolutionary — about what Assange hasdone with WikiLeaks?

Greater protection for journalists and their sourcesLeaking is best defined to mean ‘unauthorised disclosure ofinside information’. As Professor AJ Brown states, not all leakingis whistleblowing and not all whistleblowing necessarily involvesleaking, but the two come together in what the WikiLeaksorganisation describes as its purpose: ‘principled leaking’ for thepurposes of holding government and business to account. Inorder to protect the important role of the media plays inholding government (and, increasingly, corporations) toaccount, we have free speech protections for journalists to


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protect the publication of material leaked to the media and toprotect the anonymity of the source of that material. As recog-nised by the European Court of Human Rights in Goodwin v.United Kingdom:

Protection of journalistic sources is one of the basicconditions for press freedom ... Without such protec-tion, sources may be deterred from assisting the press ininforming the public on matters of public interest. As aresult the vital public-watchdog role of the press may beundermined and the ability of the press to provideaccurate and reliable information may be adverselyaffected.

In addition to the duty upon journalists to protect their sources,public interest disclosure legislation operates to provideadditional protection to whistleblowers through laws that recog-nise and grant higher authority for disclosures that would other-wise be unlawful or actionable.

Unfortunately, however, these legal protections — particu-larly those protecting whistleblowers — are notoriously inade-quate the world over. Freedom of the press gives journalists legalprotection to keep the identity of a confidential informantpr ivate even when demanded by police or prosecutors.Nevertheless, in countries around the world, withholdingsources can land journalists in contempt of court and potentiallyin jail. For example, in 2005 Pulitzer prize-winning journalist,Judith Miller, spent three months in prison in the United Statesfor refusing to reveal her CIA source in relation to the leakinvestigation by a federal grand jury into the naming of ValeriePlame as an undercover CIA officer. Similarly, laws protectingwhistleblowers are few and far in between. Despite free speechprotections, journalists and their sources are still at risk of prose-cution and potential imprisonment for revealing information inthe public interest. Legal protections designed to ensure freespeech and protect the watchdog role of the media in a democ-racy are important but are still inadequate.




WikiLeaks provides, through technology rather than law,protection for journalists and their sources that the law theworld over does not provide. The anonymous dropbox modelallows sources and whistleblowers to provide information forpublication by WikiLeaks and their media partners in a safe waythat preserves their anonymity. The anonymity assured byWikiLeaks may therefore protect sources against prosecutionsfor unauthorised disclosures where public interest disclosurelegislation does not yet protect their disclosure. WikiLeaks alsoprovides an additional level of protection to journalists. Howcan Assange or any other WikiLeaks journalists be prosecuted,convicted and jailed for contempt when they simply do notknow who their sources are? One cannot reveal what one doesnot know. How can any journalist be prosecuted and jailed forcontempt if, having used material from WikiLeaks, they do notknow who the source was?

In providing greater protection to sources, WikiLeaksprovides greater confidence in the preservation of theiranonymity and thereby facilitates the public watchdog role ofthe media.

Introducing an egalitarianism to accessto information and journalismWikiLeaks has made available more information than everbefore. This is remarkable not only because of the volume of theinformation made available, but also for the way in whichWikiLeaks has made that information available — to everyone,and for free. WikiLeaks has forged partnerships with more than90 traditional media organisations the world over, so thatjournalists with the relevant expertise and located in therelevant geographical region, can provide coverage of the infor-mation and provide it to the people to whom it matters most.From The Hindu in India, Al Akbar in Lebanon, Sydney MorningHerald in Australia, to Liberte in Haiti, the partnerships forged by


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WikiLeaks have ensured maximum impact and dissemination ofthe information.

Before, documents demonstrating wrongdoing in govern-ment or business may have been leaked to one journalist inWashington DC or Canberra. WikiLeaks makes that informa-tion available and accessible, not just to one powerful journalistin the know, but to journalists all over the world, including inthe developing world, who would not otherwise have hadaccess to the information. In this way, I believe WikiLeaks hasintroduced an egalitarianism to journalism: it is not just thepowerful journalists at the seat of political power who now haveaccess to and control the information — WikiLeaks makes itavailable to all. This also has the effect of shortcutting the oftencosy relationships that develop between journalists and govern-ment, which are part of the cause for criticism of the massmedia as the ‘Fourth Branch’ — relationships which can (andhave) resulted in self-censorship or journalists sitting on infor-mation and stories out of deference to their powerful friends.

Pioneering ‘scientific journalism’In providing the public with full access to the documents released,WikiLeaks has pioneered the practice of ‘scientific journalism’. AsAssange himself said in an article entitled ‘Don’t shoot the messen-ger’, published in The Australian in December 2010:

We work with other media outlets to bring people thenews, but also to prove it is true. Scientific journalismallows you to read a news story, then to click online tosee the original document it is based on. That way youcan judge for yourself: Is the story true? Did thejournalist report it accurately?

Scientific journalism, otherwise known as ‘transparencyjournalism’ or ‘sunshine journalism’, is the practice of includingprimary sources along with journalistic stories. The rationale isthat journalists, like academics, lawyers or scientists, should beaccountable to reference the basis for their facts and assertions




so that the rigour of their analysis can be tested. Before,newspapers were limited in what they could publish by thelength of the page, but in the modern media era online publica-tion digital technologies provide essentially unbounded capabil-ities for hosting primary source documents. WikiLeaks haschampioned this form of journalism, by providing full access todocuments, so that we, the public, can judge for ourselveswhether the journalist has accurately reported the material andidentify whether the writer has an agenda. In this way,WikiLeaks holds journalists to account by equipping a criticalaudience to scrutinise the bearers of information, and encour-ages a more responsible press.

The public interest — and the value in documentation in seeking accountabilityFinally, there is no denying the overwhelming public interest inthe information disclosed by WikiLeaks. From Tunisia to Tongaand the West Bank to West Papua, WikiLeaks disclosures haveprovided an unprecedented insight into the conduct of diplo-macy and revealed corruption, abuse of power and human rightsabuse the world over.

Despite the overwhelming public interest in WikiLeaks’disclosures, many have complained that they reported ‘nothingnew’ — or, at least, nothing we didn’t already know. How thosemaking this complaint can do so and logically explain whyWikiLeaks has been such a huge international news story, I donot know. But the answer to their point is simple: ‘knowing’something and seeing it in writing are two very different things.Just as big as the difference between ‘on the record’ and ‘off therecord’ interviews with journalists, it is one thing to knowsomething and quite another to be able to report it. Numerousjournalists have told me that for many years they had ‘off-the-record’ reports from diplomats, but after WikiLeaks’ release ofCablegate they finally had all of these reports — and more —on the record.


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Similarly, WikiLeaks disclosures have been of immensebenefit to the human rights community: accountability andjustice for human rights abuse rests, fundamentally, on ourability to gain access to information about what is actuallygoing on. As Assange said in 2006 on WikiLeaks’ first website:‘The goal is justice, the method is transparency’. We may knowthat a regime is perpetrating human rights abuse, but documen-tation of those practices is powerful. WikiLeaks’ disclosuresrelated to West Papua confirmed what those of us working onhuman rights in West Papua have long known — the military isengaging in widespread human rights abuse while on theFreeport gold mine payroll — but the existence of thesedocuments makes it much harder for our governments to denythat it is happening.

While journalists and international organisations arebanned from access to West Papua and other hotspots aroundthe world, WikiLeaks’ documents have provided, in some cases,the only source of documentary information available. Thedocuments have also proven to be a resource for human rightsand public interest lawyers as they have been appended to legalsubmissions in courts (including, for example, before the SpecialCourt for Sierra Leone in the Charles Taylor trial), and theirrevelations have formed the basis for legal action in courtsaround the world.

False allegations of illegal conduct and the financialblockade WikiLeaks engages in the same conduct that journalists andtraditional media have long traded in. The contr ibutionWikiLeaks has made in enhancing the work of the FourthEstate in our democracy is clear — and journalistic accoladeshave been heaped upon WikiLeaks and Assange for this precisereason. Nevertheless, there have been persistent, but false allega-tions of illegal conduct made against both Assange andWikiLeaks. These allegations of illegal conduct have serious




ramifications, not just for Assange and WikiLeaks, but strike atthe heart of our democracy and the free speech protections thatare designed to ensure that those in power are kept accountable.

The US government announced in December 2010 acriminal investigation into Assange and WikiLeaks, which theAustralian Ambassador to the United States has described asbeing ‘unprecedented both in its scale and nature’. Prior to thisannouncement, the State Department, the Pentagon and variousUS politicians had made statements accusing WikiLeaks ofillegal conduct, with some politicians going as far as claimingWikiLeaks engaged in terrorism. But the documentary sourcefor the US government allegations — and the source which wasexplicitly relied upon by PayPal and other financial providers toimpose the financial blockade — is the 27 November 2010letter written by Legal Advisor to the State Department, HaroldKoh, to WikiLeaks. Leaked by government to the media tocoincide with the publication of Cablegate (many forget thatgovernments often leak information themselves when it suitsthem), the letter deliberately and falsely implies illegal conductby WikiLeaks.

Days after the State Department letter was leaked, PrimeMinister Julia Gillard echoed their wrongful accusation of illegalconduct against Assange, and the Attorney-General threatenedto cancel his passport. Prime Minister Gillard’s comments wereill-considered, prejudicial and premature because they cameprior to the Australian Federal Police investigation thatultimately concluded that Assange had broken no law. AsMalcolm Turnbull very correctly pointed out, the Australiangovernment response to WikiLeaks was like a sequel of the UK’sresponse to Spycatcher years ago: Gillard pulled a Thatcher onWikiLeaks. The Australian High Court made clear in theSpycatcher case that any action in an Australian court to restrainAssange from publishing the State Department cables wouldhave failed. In the earlier case of Commonwealth v Fairfax, the


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High Court was very clear in declaring that an Australian Courtshould not act ‘to protect the intelligence secrets and confiden-tial political information’ of a foreign government, even onewhich was a very friendly one and even in circumstances wherethe Australian government requested the court to do so. Notonly was it perfectly obvious that Assange had broken noAustralian law, Turnbull noted that — despite the strenuousefforts of US authorities — there is no evidence to suggest hehas broken US law. Shadow Attorney-General George BrandisSC has agreed. Both Turnbull and Brandis are r ight.Nevertheless, Australians are still prevented from donating toWikiLeaks using their Visa and MasterCard, and Assange, anAustralian citizen, faces potential extradition to the UnitedStates to face prosecution. It is therefore important to considercarefully these incorrect allegations of illegality.

Koh’s letter was the US State Department response to aletter from WikiLeaks to the US Ambassador in London inadvance of the publication of Cablegate. In the tradition ofWikiLeaks, the following is the full correspondence chainbetween WikiLeaks and the US State Department, so readerscan judge for themselves.

26 November 2010

Dear Ambassador Susman

I refer to recent public statements by United StatesGovernment officials expressing concern about thepossible publication by WikiLeaks and other mediaorganisations of information allegedly derived fromUnited States Government records. I understand thatthe United States Government has recently devotedsubstantial resources to examination of these recordsover many months.

Subject to the general objective of ensuring maximumdisclosure of information in the public interest,WikiLeaks would be grateful for the United StatesGovernment to pr ivately nominate any specificinstances (record numbers or names) where it considers




the publication of information would put individualpersons at significant risk of harm that has not alreadybeen addressed.

WikiLeaks will respect the confidentiality of adviceprovided by the United States Government and isprepared to consider any such submissions madewithout delay.

Yours sincerely,

Julian Assange

The letter was communicated to the US ambassador under acover note from me because Assange was, at the time, in anundisclosed location and communicating only via encryptedcommunication means. I received their response the followingevening:

November 27, 2010

Dear Ms Robinson and Mr Assange:

I am writing in response to your 26 November 2010letter to US Ambassador Louis B. Susman regardingyour intention to again publish on your WikiLeaks sitewhat you claim to be classified US Governmentdocuments.

As you know, if any of the materials you intend topublish were provided by any government officials, orany intermediary without proper authorization, theywere provided in violation of US law and withoutregard for the grave consequences of this action. As longas WikiLeaks holds such material, the violation of thelaw is ongoing.

It is our understanding from conversations with repre-sentatives from The New York Times, The Guardian andDer Speigel, that WikiLeaks also has provided approxi-mately 250,000 documents to each of them for publica-tion, furthering the illegal dissemination of classifieddocuments.

Publication of documents of this nature at a minimumwould:


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• Place at risk the lives of countless innocent individu-als — from journalists to human rights activists andbloggers to soldiers to individuals providing informa-tion to further peace and security;

• Place at risk ongoing military operations, includingoperations to stop terrorists, traffickers in humanbeings and illicit arms, violent criminal enterprisesand other actors that threaten global security; and,

• Place at risk on-going cooperation between countries— partners, allies and common stakeholders — toconfront common challenges from terrorism topandemic diseases to nuclear proliferation thatthreaten global stability.

In your letter, you say you want — consistent with yourgoal of ‘maximum disclosure’ — information regardingindividuals who may be ‘at significant risk of harm’be-cause of your actions.

Despite your stated desire to protect those lives, youhave done the opposite and endangered the lives ofcountless individuals. You have undermined your statedobjective by disseminating this material widely, withoutredaction, and without regard to the security andsanctity of the lives your actions endanger. We will notengage in a negotiation regarding the further release ordissemination of illegally obtained US Governmentclassified materials. If you are genuinely interested inseeking to stop the damage from your actions, youshould: (1) ensure WikiLeaks ceases publishing any andall such materials; (2) ensure WikiLeaks returns any andall classified US Government material in its possession;and (3) remove and destroy all records of this materialfrom WikiLeaks’ databases.

Sincerely,s/ Harold Hongju KohHarold Hongju Koh Legal Adviser

This letter was then leaked to Reuters, presumably by the StateDepartment, and published around the world. On the eve of thepublication of Cablegate, Assange communicated the followingletter:




28 November 2010

Dear Ambassador Susman,

As you know, WikiLeaks has absolutely no desire to putindividual persons at significant risk of harm, nor do wewish to harm the national security of the United States.

WikiLeaks have spent significant time and resourcesredacting the material in our possession to achievethis outcome and sought to cross check our work andthat of our traditional media partners with the USgovernment.

I wrote to you explicitly with this in mind in order tooffer the US the opportunity to privately nominatespecific instances where this may occur. Instead ofeliminating the risk you allege to lives and militaryoperations you have rejected our offer for constructivedialogue and chosen a confrontational approach. Theresponse provided by the US State Departmentovernight was no more than a lawyer’s press release,which is confirmed by the fact you have released it tothe press (a matter about which I make no complaint).

I understand that the United States government wouldprefer not to have the information that will bepublished in the public domain and is not in favour ofopenness. That said, either there is a risk or there is not.You have chosen to respond in a manner which leadsme to conclude that the supposed risks are entirelyfanciful and you are instead concerned to suppressevidence of human rights abuse and other criminalbehaviour. We will now proceed to release the materialsubject to our checks and the checks of our mediapartners unless you get back to me, as you promised inthe call with our lawyers last Friday.

Yours sincerely,

Julian Assange

No response was ever received.The US State Department letter is problematic for a

number of reasons. Various lawyers’ rights organisations madecomplaints to Mr Koh for breaching the UN Principles of the


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Role of Lawyers and US law and interfering with Assange’sright to legal representation. By addressing the letter to ‘MsRobinson and Mr Assange’ and using the pronoun ‘you’, Koh’sletter suggests that the impugned document release byWikiLeaks was a joint enterprise between lawyer and client.According to Lawyers Rights Watch Canada (LRWC), the lettermade numerous ‘exaggerated and unsubstantiated allegations ofserious criminal wrongdoing’ against Assange — and me as hislawyer. Having made the letter public at a time when accusa-tions against Assange had provoked calls for his assassination orexecution, LRWC said that Mr Koh had: ‘… invited upon MsRobinson the denunciation and possible violence alreadydirected at her client. The intention to put Ms Robinson’spersonal and professional safety at risk and to interfere with MrAssange’s right to be legally represented is inescapable.’

Aside from concerns raised about my own personal safetyand US government interference with my ability to exercise myprofessional duties, LRWC emphasised the ‘professional irrespon-sibility’ of Mr Koh in ‘publishing exaggerated and unsubstanti-ated allegations of serious criminal acts’ against Assange. Koh’sallegations have had vast consequences for WikiLeaks, formingthe basis for action by financial and infrastructure serviceproviders in blocking services. Just days after the release ofpublication of this letter, Amazon removed WikiLeaks materialsfrom its cloud-storage facility. A spokeswoman for US SenatorJoseph Lieberman announced that: ‘Sen. Lieberman hopes thatthe Amazon case will send the message to other companies thatmight host WikiLeaks that it would be irresponsible to host thesite’. And sure enough, in the weeks that followed, Bank ofAmer ica, Visa, MasterCard, PayPal, and Western Unionfollowed suit.

On 3 December 2010, PayPal announced that it wasclosing payment services to WikiLeaks, cutting them off fromdonations from the public.




PayPal has permanently restricted the account used byWikiLeaks due to a violation of the PayPal Acceptable UsePolicy, which states that our payment service cannot be used forany activities that encourage, promote, facilitate or instructothers to engage in illegal activity.

PayPal did not detail the ‘illegal activity’ by WikiLeaks thatviolated the use policy but PayPal Vice-President, OsamaBedier, later stated that their decision to stop processingpayments to WikiLeaks was the direct result of the 27November letter from the US State Department that had beenleaked to the press, presumably, to this very end.

MasterCard announced that it was cancelling all paymentsto WikiLeaks, providing the same justification as PayPal:‘MasterCard is taking action to ensure that WikiLeaks can nolonger accept MasterCard-branded products … MasterCardrules prohibit customers from directly or indirectly engaging inor facilitating any action that is illegal’. Visa Europe followed. InJuly 2011, both Visa and MasterCard confirmed that the suspen-sion of payments remained in effect. As recently as February2012, MasterCard confirmed it would be maintaining itsWikiLeaks blockade. ‘The WikiLeaks decision was complex andone that we did not take without due consideration — and ourposition has not changed,’ David Masters, the company’s vice-president of Strategy and Corporate Affairs told Crikey. Theyclearly have not given proper consideration because if they hadthey would realise their decision is without legal basis, isdiscriminatory, and has the effect of chilling free speech.

Debunking false allegations of illegal conductThe State Department letter is carefully worded to imply illegalconduct, but does not hold up to closer analysis. It states: ‘… ifthe materials you intend to publish were provided by anygovernment officials, or any intermediary without properauthorisation, they were provided in violation of US law.’ Theletter does not take the legally indefensible position that


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WikiLeaks had itself broken the law. This is because it is clearfrom the US Supreme Court decision in the Pentagon Paperscase that the publication of documents received by WikiLeaksand other news publishers is legal and is protected by the FirstAmendment.

Instead, the letter states that the law had been broken bysomeone, that is, the source or whistleblower. Even this state-ment is misleading; the disclosure by US state officials ofdocuments with classification markings could be legal or illegal,depending on the circumstances of each case and, in some cases,whether specific public interest disclosure litigation protectssuch disclosure. The wording of the letter attempts to implyillegal conduct on the part of WikiLeaks, but this requires thegovernment to elide the liability of the source who discloses theinformation with the liability of the person receiving thematerial — a direct attack on free speech protections for thefourth estate. The Pentagon alleged in August 2010 thatWikiLeaks’ activities were ‘brazen solicitation to US govern-ment officials to break the law’. These and other statements haveindicated that the US government may seek to make the casethat solicitation of material through the provision of an anony-mous dropbox amounts to active encouragement or assistanceto an unlawful release such as to render the ‘solicitor’ complicitwith the offence.

But this would put at risk the entire practice of investiga-tive journalism. The WikiLeaks dropbox is the modern-dayequivalent of receiving a brown paper envelope containing adossier with no sender address marked. As Australian crime andnational security journalist, Dylan Welch has written,

No longer will would-be whistleblowers meet journal-ists in underground carparks wearing trenchcoatsclutching manila folders. Today the manila folder is anuntraceable online dropbox; the trenchcoat an anony-mous online chat system; and the underground carparkan obscure corner of the web’s vast empire.




Professor AJ Brown argues that the allegation that WikiLeaksacts illegally or encourages illegal acts (i.e. leaks) by providing adropbox demonstrates that policing the conduct of the newmedia has ‘reached almost comic proportions’. The allegation isclose to absurd because other media outlets continue to activelysolicit confidential information, just as they have always done. AsWikiLeaks states explicitly on its website: ‘Like other mediaoutlets conducting investigative journalism, we accept (but donot solicit) anonymous sources of information. Unlike otheroutlets, we provide a high security anonymous dropbox fortifiedby cutting-edge cryptographic information technologies.’ InAustralia, the ABC website states: ‘The ABC News OnlineInvestigative Unit encourages whistleblowers, and others withaccess to information they believe should be revealed for thepublic good, to contact us. To leak a story, please fill out theform below and click the “Send” button.’ Similarly, the WallStreet Journal’s ‘safehouse’ online dropbox tells whistleblowersthat secret documents and databases ‘are the key to modernjournalism, but they are almost always hidden behind lockeddoors, especially when they detail wrongdoing such as fraud,abuse, pollution, insider trading, and other harms; that's why weneed your help’. Neither the US or Australian governmentsappear to have demanded that News Corporation or the ABCdesist from soliciting confidential information. Nor have eitherorganisation been subjected to a banking blockade.

Indeed, by providing the anonymous dropbox, WikiLeaksdoes far less than most journalists in terms of encouragingsources to leak information. Any investigative journalist willtell you that, more often than not, journalists cultivaterelationships with confidential sources and whistleblowers.There is often extensive communication between the journalistand their source, whether it occurs over a beer at the pub or ina dark alley or underground car park. Journalists will soundout the source to see whether the source is willing to provide


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information, and directions may be given on how that informa-tion can be safely communicated.

This practical reality has implications in considering boththe legality of WikiLeaks’ actions and the potential US criminalprosecution of Assange. As Australian journalist, Dylan Welch,has written for the Walkely Foundation magazine,

Contrary to the postur ing of the Amer ican andAustralian governments, Assange and his colleagues arejournalists. If US soldier Bradley Manning was thesource for the US diplomatic cables, then the relation-ship he and Assange had was an entirely traditionaljournalist/source one.

The idea that Assange was what amounts to a ‘foreignagent’attempting to suborn a US military is wrong. Askyourself this: if you walked into a bar and met Manning,who did nothing more than say he was a US militaryintelligence analyst, would you perhaps nudge theconversation towards whether he might be willing to bea source? If you’re not, you’re either not a journalist or atoo-timid one. The only difference between whatAssange did and what any fair-minded hack with a nosefor news would do is that Assange’s interaction occurredonline.

Any criminal prosecution of Assange in the United States wouldput at risk the work of all journalists and their interactions withconfidential sources.

The persecution of WikiLeaks threatens the protections for old and new mediaIt is therefore clear that WikiLeaks’ operations are both legal andconsistent with the practices of the ‘old’ media, which areprotected by law. Allegations of illegal conduct levelled atWikiLeaks are without basis and put at risk all media organisa-tions, whether new or old. The standard being set in respect ofWikiLeaks cannot realistically be maintained — or imposed onany media organisation at least, not in any nation claiming tohave a free media and a commitment to liberal democracy.




The letter goes further to state: ‘As long as WikiLeaks holdssuch material, the violation of the law is ongoing.’ This state-ment is a reference to the antiquated Espionage Act, which hasnever been successfully applied to news publishers, and numer-ous prominent legal scholars have reiterated that, in any event,the Espionage Act does not apply to WikiLeaks. Even if it were toapply, it would then apply to all the news agencies that held thematerial, including the New York Times, The Guardian, Der Spiegel,El Pais, and Le Monde and many more of the 90 media partnerswho published Cablegate material alongside WikiLeaks — all ofwhom held the same material. Of course, none of WikiLeaks’partner media organisations are subject to financial blockades.

Nevertheless, financial service providers have relied uponthe State Department letter to cut WikiLeaks off. The blockaderemains in place, despite the fact the US Treasury concluded inJanuary 2011 that there are no grounds to blacklist WikiLeaks.

When Visa announced its decision to suspend WikiLeaksdonations on 8 December 2010, Visa stated it was awaiting aninvestigation into ‘the nature of its business and whether itcontravenes Visa operating rules’ but did not go into furtherdetails. Visa instructed the Denmark-based financial servicescompany Teller AS to investigate WikiLeaks and its fundraisingbody, Sunshine Press. Peter Wirren, Teller AS’s Chief Executivetold Associated Press that, after review by their lawyers, they hadconcluded that neither WikiLeaks nor Sunshine Press had actedin contravention of Visa’s rules or Icelandic legislation. But theblockade remains in place.

The decision to block WikiLeaks is not based upon a lawor by a decision of a judicial or even administrative authority(which could be subjected to constitutional challenge). Privatecorporations are acting upon extra-legal political pressure. Theuniform argument, which began with PayPal and appears tohave been replicated by Visa, MasterCard, Bank of America andothers, is that WikiLeaks breaches use policies not because it


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engages in illegal activity, but because it allegedly encouragesillegal activity, by ‘encouraging sources to release classifiedmaterial, which is likely a violation of law by the source’. Theabsurdity of the WikiLeaks blockade becomes more apparentwhen one considers how this applies more broadly. Followingcriticism PayPal announced:

We understand that PayPal’s decision has become partof a broader story involving political, legal and freespeech debates surrounding WikiLeaks’ activities. Noneof these concerns factored into our decision. Our onlyconsideration was whether or not the account associ-ated with WikiLeaks violated our Acceptable Use Policyand regulations required of us as a global paymentcompany. Our actions in this matter are consistent withany account found to be in violation of our policies.

If, as PayPal states, financial providers are to apply usage policiesconsistently — and WikiLeaks engages in the very sameconduct as the ‘old’ media — then why is there no bankingblockade for the ABC or News Corporation, or NewsInternational? Imagine if Visa, MasterCard and PayPal refusedto process subscription payments or advertisements for the WallStreet Journal because of alleged ‘encouragement of sources to actin breach of law’ by providing their WikiLeaks-style anonymousdropbox. Imagine if the Sydney Morning Herald was subjected toa financial and banking blockade because one of its journalistsencouraged a source, over a beer down at the pub, to hand overa classified document revealing government corruption?

Neither the US government nor the financial companiesmaintaining the blockade can point to one instance of illegalconduct by WikiLeaks or its employees.

Meantime, numerous people employed or engaged byNews International have been arrested and are currently beingprosecuted for the illegal practice of phone-hacking, andanother — Phillip Campbell Smith — has been alleged to havehacked national security information from a British intelligence




agent. Phone-hacking was not an isolated practice at NewsInternational, but has been proven to have been part of an entireculture of criminal behaviour, endorsed explicitly or implicitlyat the highest levels of the company. News International is notsubjected to a financial blockade.

Bernard Keane has written for Crikey about the irony ofthe News International hacking scandal in light of the‘concerted campaign of the demonisation of WikiLeaksconducted by elements of the media’ that WikiLeaks obtainedinformation by hacking, rather than whistleblowing. Keanesuggests that the false allegations of hacking were an attempt tosomehow demonstrate WikiLeaks was not a legitimate mediaoutlet — and yet:

… while WikiLeaks was obtaining information fromwhistleblowers, people engaged by News International,supposedly the sort of legitimate outlet to whichWikiLeaks could be unfavourably compared, werehacking or alleged to have been hacking nationalsecurity information.

News International is correctly accused of hacking, but suffersno financial blockade. WikiLeaks is falsely accused of hackingand suffers a financial blockade.

The absurdity and arbitrary nature of the blockade againstWikiLeaks highlights how the rush to silence WikiLeaks has ledto the abandonment of any sustainable legal standard.

Free speech, censorship and public–private partnershipsThe financial blockade against WikiLeaks amounts to effectivecensorship; in November 2011 WikiLeaks announced it had toshut down its publishing activities because the blockade hadwiped out 95% of its income so it could no longer survive. Forits impact upon free speech, the UN High Commissioner forHuman Rights has openly criticised the financial blockade, ashave the UN Special Rapporteur on the Promotion and


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Protection of the Right to Freedom of Opinion and Expressionand the Inter-American Commission on Human Rights SpecialRapporteur for Freedom of Expression. The EuropeanCommission is currently investigating whether to launch a full-scale investigation into its legality.

The blockade has been criticised as a public–privatepartnership to censor the new media, which systematicallyharnesses extra-legal pressure to achieve results beyond what thelaw would provide or even permit. As Professor Yochai Benkler,Co-Director of the Harvard University Berkman Center forInternet and Society, has written, the WikiLeaks blockade isevidence of a new, extra-legal path of attack aimed at preventingaccess and disrupting payment systems and service providers toeffect censorship. The US government is prevented by the FirstAmendment from implementing this form of blockade against amedia organisation — any law purporting to do so would bestruck down as unconstitutional. But private corporations areachieving what the US government could not. By publiclystating or implying that WikiLeaks had acted unlawfully, thegovernment pressured firms skittish about their public imageand government relationships to cut off their services toWikiLeaks. The inapplicability of constitutional constraints tothese non-state actors creates a legal void, permitting firms todeny services to WikiLeaks, while WikiLeaks and the consumerswho wish to exercise their freedom of expression to supportWikiLeaks by making a donation, are left with little legalrecourse under overly broad commercial terms of service.

Attacks on WikiLeaks have grave implications not just forthe rest of the media, but also for other non-profit organisationsthat rely upon donations to maintain their often controversialoperations. For example, imagine if Amnesty were subjected to ablockade for campaigning for the release of political prisoners ina US client state? Imagine if Greenpeace were subjected to ablockade if the Rainbow Warrior crew boarded a whaling ship? If




the attack on WikiLeaks is allowed to stand, then it sets a worry-ing precedent for all not-for-profit organisations whose revenueis based upon public donations.

Inconsistent approaches to WikiLeaks and the needto reinforce protections for the media — includingthe new mediaWhile WikiLeaks has brought about an information revolution,it is important to remember that, at its core, the act of publica-tion of information disclosed by confidential sources in thepublic interest is no different to what journalists have alwaysdone — just on a much greater scale and with greater techno-logical sophistication. At the same time, WikiLeaks’ high-impactstrategy, combined with controversies regarding its relationshipswith ‘old’ media have made the organisation a game-changer inconsidering journalism, disclosure of information and regula-tion. WikiLeaks has become a byword for debate about the verynature of journalism and the role of journalists in the newmedia age. Assange and his colleagues are journalists, even if —as Welch describes them — they are ‘unconventional ones’.According to Welch: ‘WikiLeaks is an organisation committedto transparency, in the way any genuine member of the fourthestate should be.’ If journalism is best described as a professionthat is committed to transparency, truth and accountability, andone that brings down corrupt governments, highlights inequityand injustice, and gives a voice to the voiceless, then the pasttwo years arguably demonstrate that WikiLeaks is more of anorganisation of journalists than News International.

The inconsistent approaches to WikiLeaks’ activities has lednot only to an inconsistent approach to the application of exist-ing legal protections to WikiLeaks and the new media, but alsoto law reform efforts aimed at improving legal protections for allmedia.

Knee-jerk political reactions to WikiLeaks are credited withthe failure of the long-awaited US Federal shield laws in January


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2011. Unlike Australian shield laws, purely voluntary, part-timeor recreational web publishers were to be excluded in favour ofpersons who ‘regularly’ participate in news publishing ‘for asubstantial period of time or for substantial financial gain’. Iwould argue that the definition adopted by the US bill adoptsthe wrong metric: it should not matter whether the personreceives ‘substantial financial gain’ or even engages in newspublication for ‘a substantial period of time’, but insteadwhether the person communicates news to the public throughany medium. To make sure WikiLeaks would not benefit, UScongressmen reportedly prepared an amendment to the Billwhich would have explicitly exclude WikiLeaks from protec-tions under the Act had it been passed. It is telling that theUnited States considered that shield laws required an explicitexception to the law in order to prevent WikiLeaks frombenefiting from the law’s protection: Assange is a journalist.

While Australian shield laws are far from perfect, the imple-mentation of a federal shield law in Australia was a major devel-opment. Both their Bills proposed to define ‘journalist’ to meana person: ‘who in the normal course of that person’s work maybe given information by an informant in the expectation thatthe information may be published in a news medium’. In theend, the government also accepted an amendment proposed bythe Australian Greens, to extend the privilege to any person‘engaged and active in the publication of news’, with the defini-tion of ‘news medium’ expanded to ‘any medium’. Therefore, inAustralia, the definition of ‘journalist’ was made broad enoughto cover participants in news-gathering and publication in theage of the new media.

The attempt to single out WikiLeaks from the rest of themedia as a web publisher was not limited to its categorisationfor the purposes of shield laws in the United States, but extendsto allegations that WikiLeaks had somehow participated in orsolicited the act of disclosure itself, that is, the act of whistle -blowing — an extremely dangerous precedent for all media. If




anything, the WikiLeaks affair ought to focus attention on theneed for reforms to protect whistleblowers. At the recent Houseof Representatives Committee, Dreyfus referred to WikiLeaks instating that without adequate whistleblowing protections, ‘manyofficials would simply resort to leaking information in ways thatwere more difficult to control and assess, including the anony-mous disclosure of official information through websites likeWikiLeaks’.

While Australia has made some headway in implementingcertain whistleblowing protections, most notably in Queensland,which has one of the most progressive laws in the world, thesehave not gone far enough. Notably, almost four years since theFederal Government committed to enacting a federal PublicInterest Disclosure Act, a further self-imposed deadline of 30 June2011 passed without the government having made any majorprogress. Further, only marginal progress towards comprehensivewhistleblowing protection in business and non-governmentsectors. Controversies regarding Blackwater and Haliburton, andmore recently HB Gary and Stratfor and the privatisation ofgovernment services in the United States and elsewherehighlight the need for reform in this area.

ConclusionAs the US Supreme Court said in the Pentagon Papers case:‘Only a free and unrestrained press can effectively exposedeception in government.’ Legal protection for journalists,sources and whistleblowers are essential to ensuring the media’srole in a democracy. In an era of change in the media, Australiaand other governments must hold their commitment to anindependent and free press, including both ‘old’ and ‘new’media. Responses to WikiLeaks reinforce the need to maintain aclear, long-term vision about the role of the law and, indeed, therule of law, in ensuring integrity and transparency in govern-ment and in regulating the disclosure of information. After all, asformer US President John F. Kennedy has said:


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A nation that is afraid to let its people judge the truthand falsehood in an open market is a nation that isafraid of its people.

The lawsuits facing Assange and WikiLeaks provide a litmus testfor this commitment. Assange is facing potential extradition tothe United States to face criminal prosecution. But as formerState Department spokesperson PJ Crowley (sacked for admit-ting that Bradley Manning had been subjected to inhuman anddegrading treatment) has said, ‘it is hard to distinguish whatWikiLeaks did from what the New York Times did’, and that any‘prosecution of Julian Assange would come at a tremendous costto the interests and values that (Americans) hold dear’.

Yet, WikiLeaks’ latest release of confidential emailsobtained from the US private intelligence firm Stratfor indicatethe US Department of Justice has issued a secret, sealed indict-ment against Julian Assange. While the Department of Justicehas refused to confirm the existence of the Assange indictment— it refuses to comment upon any alleged sealed indictment— the Stratfor email is the best confirmation we have of thelong-stated concerns about the risk of Assange’s extradition tothe United States to face criminal prosecution for his publish-ing activities with WikiLeaks. The email was from Fred Burton,Stratfor’s vice-president for counterterrorism and corporatesecurity, and former deputy chief of the Department of State’scounterterrorism division for the Diplomatic Security Service.On Australia Day last year, Burton revealed in internal Stratforcorrespondence: ‘Not for Pub — We have a sealed indictmenton Assange. Pls protect’. It follows statements by DavidCoombs, defence counsel for Bradley Manning, who argued inManning’s pre-trial hearing in December that the Departmentof Justice had an interest in Manning taking a plea-bargain toimplicate Assange.

If extradited to the United States, Assange could face yearsin federal prison fighting charges, even though prominent




academics agree that he is entitled to the protections of the FirstAmendment. Financial companies have no legal basis for theblockade against WikiLeaks. Prominent academics agree that ifimplemented by the state — rather than private corporations —it too would be struck down for breach of the FirstAmendment. But private corporations are achieving what theUS government cannot because of free speech constitutionalprotections: effective censorship. To remove the blockaderequires the coordination of lawyers in jurisdictions around theworld, technical analysis of transaction details and terms ofservice, and potentially litigation. It requires resources; resourcesthat Assange and WikiLeaks simply do not have. But their fightimplicates our rights, as the public, and so their fight is our fight.Similarly, WikiLeaks’ legal battles implicate the entire media —new and old. The treatment of Assange and WikiLeaks creates adangerous precedent and one that places all media on a danger-ous and slippery slope. Editors and journalists, whetherWikiLeaks’ media partners or not, ought to see their own self-interest in standing together with WikiLeaks in defending freespeech and public interest disclosures and pushing for betterprotection under law for those who risk their careers, theirliberty — and sometimes their lives — to provide the leaks thatallow the media to do their job in our democracy.

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Jennifer Robinson is a London-based Australian human rightslawyer and legal advisor to Julian Assange and WikiLeaks. She isDirector of Legal Advocacy for the Bertha Foundation andadjunct lecturer in law at the University of Sydney. Previouslyshe has acted for the New York Times, Bloomberg and AssociatedPress, and worked on human rights cases in West Papua,Indonesia, Mauritius, Iran, Malaysia, and Syria. She is a RhodesScholar.


Documents

WikiLeaks, Disclosure, Free Speech and Democracy: New ...But the political and legal responses to the success of internet publisher WikiLeaks in the past few years have called into