Wikileaks as a media platform: Legal aspects - Faculty of Law University of Ghent
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Faculty of Law
University of Ghent
Academic year 2011-2012
Wikileaks as a media platform: Legal aspects
LLM of Advanced studies in European Law
Student
Laurence Lejeune
Supervisor
Prof. Dirk Voorhoof
1
2
Table of content
Table of content..……………………………………………………………………………...3
Introduction…………………………………………………………………………………...5
CHAPTER 1: HISTORY AND FUNCTIONING OF WIKILEAKS…………………………………...7
SECTION 1: WWW.WIKILEAKS.ORG……………………………………………………7
SECTION 2: WIKILEAKS UNDER AMERICAN LAW…………………………………….8
CHAPTER 2: WIKILEAKS, A LEGAL CHALLENGE - INVENTORY OF THE LEGAL ASPECTS
INVOLVED……………………………………………………………………………………..11
SECTION 1: ISSUES OF MATERIAL LAW………………………………………………11
§ 1: FREEDOM OF EXPRESSION AND OF INFORMATION……………………………..11
§ 2: TRANSPARENCY VERSUS CLASSIFIED INFORMATION…………………………..12
§ 3: CYBER-SECURITY……………………………………………………………...13
§ 4: WHISTLEBLOWING.……………………………………………………………13
§ 5: MEDIA LIABILITY……………………………………………………………...14
§ 6: PROTECTION OF SOURCES……………………………………………………..14
§ 7: INTELLECTUAL PROPERTY RIGHTS…………………………………………….14
§ 8: LEGALITY OF PRESSURES AGAINST WIKILEAKS……………………………….15
SECTION 2: LEGAL ISSUES DUE TO TERRITORIAL APPLICATION OF LAW…………...16
§ 1: EXTRADITION…………………………………………………………………16
§ 2: COMPETENT JURISDICTION AND APPLICABLE LAW…………………………….17
CHAPTER 2: MEDIA LIABILITY APPLIED TO WIKILEAKS EVENTS…………………………..19
SECTION 1: PROTECTION OF JOURNALISTS FOR THE PUBLICATION OF CONFIDENTIAL
INFORMATION………………………………………………………………………...19
SECTION 2: LIABILITY OF JOURNALISTS FOR THE PUBLICATION OF CONFIDENTIAL
DOCUMENTS…………………………………………………………………………..20
§ 1. INFORMATION OF MANIFEST PUBLIC INTEREST: CONTRIBUTION TO A PUBLIC
DEBATE………………………………………………………………………...20
§ 2: JUSTIFICATION OF THE CONFIDENTIALITY…………………………………24
A. Reality of the confidentiality……………………………………………24
B. Necessity of the confidentiality…………………………………………26
§ 3: NEUTRALITY OF PRESENTATION…………………………………………..28
§ 4: ACCURACY OF THE INFORMATION………………………………………...30
SECTION 3: WIKILEAKS, THE SAME PROTECTION AS TRADITIONAL MEDIA?.............31
CHAPTER 3: LIABILITY AND PROTECTION OF WHISTLEBLOWERS…………………………..34
SECTION 1: FREEDOM OF EXPRESSION VERSUS DUTY OF LOYALTY…………………35
3
SECTION 2: LEGAL PROTECTION OF WHISTLEBLOWERS……………………………36
SECTION 3: LIABILITY OF WHISTLEBLOWERS IN THE ECHR CASE-LAW…………...38
§ 1: PUBLIC INTEREST TO BE AWARE OF WRONGDOINGS…………………...………38
§ 2: DISCRETE MEANS OF REPORTING……………………………………………...39
§ 3: CREDIBILITY OF PUBLISHED INFORMATION……………………………………41
§ 4: MOTIVATION OF THE WHISTLEBLOWER……………………………………….41
§ 5: POTENTIAL DAMAGE FOR THE EMPLOYER……………………………………..42
§ 6: PROPORTIONALITY OF THE SANCTION…………………………………………42
SECTION 4: SPECIFIC CASE OF MILITARY OFFICERS………………………………...43
Conclusion…………………………………………………………………………………...45
Bibliography…………………………………………………………………………………47
1. Legislation………………………………………………………………………….…47
2. Official documents…………………………………………………………………....48
3. Doctrine……………………………………………………………………………….49
4. Jurisprudence………………………………………………………………………....51
5. Press Articles…………………………………………………………………….…...51
6. Blogs and others…………………………………………………………………...….52
7. Websites…………………………………………………………………………...….53
4
Introduction
Wikileaks is an IT platform where whistleblowers, journalists and activists in possession of
sensitive materials can disclose them and benefit from anonymity. Since 2010, the Wikileaks
website has enjoyed a worldwide media coverage. It fascinates some of us, it intrigues or it
scandalizes others, but something is sure: in any case, it creates the buzz. But there has been
leaks before Wikileaks and whistleblowers as well. So, why such a frenzy around the
activities of the website?
It is the scale of the disclosure that makes Wikileaks unique in comparison with other leaks. It
is actually the first time that such a large-scale dissemination of sensitive and confidential
information occurs since the release of the Pentagon papers in the seventies. In addition to the
enormous number of documents, the way the leaks made their way into the press also
constituted an innovation1. Moreover, the leaks being published on the Internet, the speed and
the scope of their spreading are incomparable.
The thinking of Wikileaks is clear; it follows the idea that an institution enjoys legitimacy
through the election and that, for those reasons, the voters retain a right to monitor the action
of their rulers. Indeed, as it can be read on the website, the philosophy of the Wikileaks’team
is the following:
Publishing improves transparency and this transparency creates a better society for
all people. Better scrutiny leads to reduced corruption and stronger democracies in all
society’s institutions, including government, corporations and other organisations. A
healthy, vibrant and inquisitive journalistic media plays a vital role in achieving these
goals. We are part of that media.2
They pursue thus the objective to uphold transparency in government institutions and to
struggle corporate fraud by disclosing documents that governments or corporations would
have rather kept secret. As an impetus, they claim that, since principled leaking has already
changed the course of history for the better in the past, it may do the same in the present and,
consequently, lead to a better future3.
But, if the intentions of the Wikileaks’ team may seem honourable, the website constitutes a
problem to a lot of people. Its functioning raises complex questions linked to human rights
and to the balance between the right of access to information on the one hand and the need to
protect national security and public order on the other hand. Indeed, if there is an indubitable
interest for the citizens in knowing what is being done in their name, the confidential conduct
of diplomacy and business can sometimes be really justified.
Does every truth have to be said? And is Wikileaks guilty of having published thousands of
diplomatic and military information or of having defended freedom of expression and the
duty to inform in the interest of the public? The opinions diverge.
1
B Thomaß, ‘WikiLeaks and the question of responsibility within a global democracy’, (2011), European View,
vol. 10, n° 1, p 1
2
‘Wikileaks – About Wikileaks’, accessed on 20 March 2012
3
Ibid
5
Media often supports the organization because it deals with their most personal interests:
protection of sources and freedom of the press4.
For some people, Wikileaks embodies the future of investigative journalism. Others present
the website as an organization of informers, of madmen or even of criminals. For them, it is
the site to break down because it constitutes a serious threat in particular from an ethical
point.
The aim of this paper is not to determine whether Wikileaks is good or bad. Our objective is
to situate the Wikileaks events in a European context and to examine how European
institutions and jurisdictions deal with similar cases.
Firstly, we will do a brief inventory of the legal aspects involved in the “Wikileaks affair”.
The objective is to show that Wikileaks is a complex issue because it raises more legal
questions than it might be thought at first glance.
In the following parts of this paper, we will focus on the liability of the actors involved in the
process of communication of the confidential information. Publications on
www.wikileaks.org imply two different steps. Firstly, the classified information has to be
delivered to the website or to the editorial staff by a whistleblower and then the Wikileaks
staff and the collaborating journalists may decide to publish those secret documents. We will
thus address those two steps separately.
In a first time, we will focus on the liability of journalists for having published the result of
someone else’s leak. We will try to analyse how the European Court of justice treats
journalists in such situations and which elements influence its decision.
Secondly, we will see that behind this frenzy around the activities of Wikileaks, there is in
fact the tracking of the real thief of the documents. We will thus analyse how those leakers are
treated in the European case-law; which elements may play in their favour or in their
disfavour and whether the European Union grants them with a certain level of protection.
4
D Domscheit-Berg, Inside Wikileaks : dans les coulisses du site Internet le plus dangereux du monde (Grasset,
Paris, 2011) p 33
6
Chapter 1: History and functioning of Wikileaks
Section 1: www.wikileaks.org
Wikileaks was created in 2006 by the well-known Julian Assange and by other defenders of
freedom of information such as accredited journalists, software programmers, network
engineers, mathematicians. It is a non-profit media organisation based on a participatory
functioning. It invites all public officials, bureaucrats, and employees of business to disclose
embarrassing information which their institution is trying to hide but that the public should
know.
Wikileaks receives documents electronically from various sources, by means of postal “drop-
box” and by using “cutting-edge cryptographic technologies” in order to ensure the
anonymity of their sources5.
Since 2006, the documents released by Wikileaks have exposed, among others, government
corruption and abuses in Kenya, Operations of the Church of Scientology, Guantanamo Bay
prison procedures manual, bank statements of thousands of customers of the Bank Julius
Baer, … But it is the date of the 5th April 2010 which marks the beginning of the global
notoriety of Wikileaks, with the publication of the video of the air raid of the 12th July 2007 in
Iraq. The so-called “collateral murders” video shows bullets fired from a helicopter by
American soldiers killing two photographers from the international news agency Reuters and
Iraqi civilians.
Three months after the “collateral murders” video, Wikileaks published 91 000 military US
secret documents on the war in Afghanistan, in collaboration with The Guardian, The New
York Times and Der Spiegel newspapers. The documents include revelations about the
civilian victims and alleged links between Pakistan and the insurgents. At that moment, a
criminal investigation of Wikileaks was open in the United States. In October 2010,
Wikileaks published 400,000 documents concerning the war in Iraq, among which many
suggest torture covered by the American army. Those “War Logs” from Iraq and Afghanistan
made known information about the American military behaviour during those two wars. They
provided proofs of ‘civilian deaths, abuse and torture by local militias friendly to the U.S.
military reliance on private contractors, and the difficulty that American forces faced both on
the ground and in managing complex internal and international political alliances (for
example, with Pakistan in Afghanistan)’6.
End of November, Wikileaks began to disclose over 250 000 US diplomatic cables exposing
the underside of the diplomacy of the United States. For this release, Wikileaks has
collaborated with five leading newspapers of the international press (namely The Guardian,
El Pais, Der Spiegel, The New-York Times and Le Monde). The diplomatic cables revealed
how U.S. diplomats viewed foreign leaders and the political and economic conditions in
countries and regions around the world7.
While working in collaboration with major dailies, Wikileaks always uses the same
procedure. Firstly, it grants previous access to the collaborating newspapers and entitles them
5
Cf. Wikileaks – About Wikileaks (n 2)
6
M Fenster, ‘Disclosure’s Effects: Wikileaks and Transparency’ (2012), Iowa Law Review, vol 97, p 8
7
Ibid
7
to analyse the leaked document and to treat the information, in exclusivity. Then,
simultaneously, Wikileaks posts the untreated documents with minimal redaction on its site,
while the newspapers publish their treated documents. This collaboration seems to have
highly increased public interest in the website since it contributed to a better understanding of
the information.
Finally, it is important to note, even if this paper focuses on the Wikileaks events, that
Wikileaks is not the only site of this kind. Indeed, it seems that the success of Wikileaks has
inspired other persons to open similar websites following the same models. For instance,
Openleaks has been created by former members of Wikileaks; Brusselsleaks intends to reveal
corruption and other malpractice in the European Institutions. The development of this
practice is obviously already in progress. It may be a clue showing that Wikileaks is only the
‘Christophe Colombus’ or the symbol of the emergence of other whistleblowers platform. It
may also be held that Wikileaks is an indication showing that our information society is
subject to transformations8.
Section 2: Wikileaks under American Law
While having a look at the different documents disclosed by Wikileaks, it is not difficult to
notice that the country which is the most targeted by the publication is America. This is of
course one of the reasons explaining why United States are so willing to pursue the website
and its representatives. Before trying to situate the Wikileaks events in a European context,
we have found interesting to address briefly this problematic in the U.S. framework. As it has
been reported in the media, the United States have started an investigation on Wikileaks and
different experts have been gathered in order to see on which legal basis it would be possible
to pursue the website. However, as far as we know, American experts face difficulties to find
an existing provision likely to apply effectively to the affair at issue.
The United States authorities seem to focus their investigation on the Espionage Act. This act
is a kind of “vestige” from the First World War and from the Cold War9. At that time, those
provisions were intended to pursue persons disclosing classified information relating to
national defence in order to help a foreign State or to harm the United States10. But the
problem faced by the American authorities is that the context of the Wikileaks publications is
totally different. Here, the United States Government does not face any foreign agent and the
disclosures are not intended to help a foreign State or to harm America but rather “to bring
important news and information to the public”11.
There are effectively several provisions in the Espionage Act criminalizing the exploitation of
national security information, but it seems that none of them criminalize the fact of “simply”
publishing the result of someone’s else leaks. Some sections refer to documents “relating to
the national defence”. Other provisions only criminalize the fact of providing confidential
8
Cf. WikiLeaks and the question of responsibility within a global democracy, (n 1) p 2
9
B Weiss, ‘Why prosecuting Wikileaks’Julian Assange won’t be easy’ (5 December 2010),
accessed 14
January 2012
10
G Light, ‘The Wikileaks story and criminal liability under espionage laws’ (26 August 2010),
accessed 24 March 2012
11
Cf. Wikileaks – About Wikileaks (n 2)
8
information to an agent of a foreign State or to persons ‘not entitled to receive’ it12. It seems
thus that all those provisions target more specific situations and sanction the disclosure of
very specific types of confidential information13. Another difficulty that the American
Government will have to face if it decides to prosecute Wikileaks under the Espionage Act is
that it has the burden to prove ‘an intent to do harm to the government or to intentionally aid
and abet a foreign government’. But, given that the admitted intention of the site is to show
‘evidence of the truth’, it is quite a heavy burden to meet14.
Another impediment for the U.S. is the First Amendment of the American Constitution that
protects the freedom of expression and provides an undeniable extra-protection to publication.
Of course the First Amendment is not intended to authorize the disclosure of ‘the recipe for
the plutonium bomb to Osama bin Laden’, it protects freedom of expression as far as the
publications at stake are not ‘so dangerous to national security as to override the First
Amendment’15. But once again, this element will have to be proven by the American
authorities and once again it is a heavy burden to meet. Moreover the First Amendment has
been given by the American judges an interpretation which is strongly in favour of the
dissemination of information by the media. Indeed, U.S. precedent, the most famous of which
is the Pentagon Papers case, seems to imply that the First Amendment protects Wikileaks
from publishing leaked documents and that the government rarely succeeds in prosecuting a
member of the media for having disclosed the produce of someone else’s leak16. In the well-
known Pentagon Papers case, the Supreme Court also stated that once classified secret
information was leaked, ‘the government has only very limited authority to prevent its further
dissemination’17.
Given those reflections, it seems that the Wikileaks events highlight that the provisions of the
Espionage Act are mostly outdated and not adapted to electronic information and that this act
was not intended to apply to the press18.
Nevertheless, if it seems that there is not really a rule sanctioning the publisher of information
obtained illegally, it is not really the case for the persons at the origin of the leak. American
courts have indeed already sanctioned leakers and conviction of whistleblowers seems to be
way easier than the one of the Wikileaks staff 19. This is surely one of the reasons why
America is so very keen to incriminate Bradley Manning who is suspected to be one of the
sources of Wikileaks.
Soldier Manning is a 23-years-old American and is currently subject to criminal charges for
allegedly transferring classified military information to an unauthorized person. He has been
arrested in June 2010 and is currently being held in US military custody waiting for his trial20.
12
Cf. The Wikileaks story and criminal liability under espionage laws (n 10)
13
Cf. Why prosecuting Wikileaks’Julian Assange won’t be easy (n 9)
14
Cf. The Wikileaks story and criminal liability under espionage laws (n 10)
15
Cf. Why prosecuting Wikileaks’Julian Assange won’t be easy (n 9)
16
Cf. The Wikileaks story and criminal liability under espionage laws (n 10)
17
E Peterson, ‘Wikileaks and the Espionage Act of 1917 – Can Congress make it a crime for journalists to
publish classified information?’ accessed on 23 April 2012
18
Ibid.
19
J Gerstein, ‘Will Wikileaks escape Justice?’ (12 February 2010)
accessed on 24 March 2012
20
T C Ellington, ‘« Thin-Skinned » on Democratic Values ? The Wikileaks Case and the Role of Secrecy in the
Democratic State’ (presentation to the Sixth General Conference of the European Consortium for Political
9
The circumstances of Manning’s confinement are subject to sizeable concern21. They have
been described as cruel and inhuman22.
Research 2011) pp 8-10,
accessed on 18 january 2012
21
Ibid.
22
R Meerpol, ‘Support Bradley Manning’ (7 July 2011) accessed on 31 March 2012
10
Chapter 2: Wikileaks, a legal challenge - inventory of the legal
aspects involved
We will start by making an inventory of the legal issues raised by the Wikileaks affair. The
aim is to show that the legal aspects in play in that context are both novel and challenging and
are also more numerous than what one might think at first glance. Wikileaks constitutes
indeed a legal challenge with regard to freedom of expression, privacy, national security,
public order, Internet freedom and raises questions related to the relation between
governments and media. Besides those legal aspects, the Wikileaks events tee up the question
of defining “media” and “journalism” in the Internet era and ‘highlights the complexity of
defending Governments against insider threats as well as the irreversibility of information
leakage’23.
Section 1: Issues of material law
§ 1: Freedom of expression and of information
The right to freedom of expression and information is consecrated in several international
treaties. Article 10 of the European Convention of Human Rights is the most relevant from a
European point of view. This provision protects the right to express ideas and opinions but
also the right of the public to receive information and media output24. Freedom of expression
and of information are also protected by article 19 of the International Covenant on Civil and
Political Right and by article 19 of the Universal Declaration of Human Rights.
As it is mentioned on the Wikileaks homepage, the website justifies its activities on ground of
freedom of information. The staff of the organisation cites the Universal Declaration of
Human Rights as its main source of inspiration and states that:
Article 19 inspires the work of our journalists and other volunteers. It states that
everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.25
However, the second paragraph of article 10 states right of access to information may be
subject ‘to formalities, conditions, restrictions, or penalties as are prescribed by law and are
necessary in a democratic society’ which pursue some determined legitimate aims among
which, the need to protect confidential information26. In such a situation, restrictions of the
freedom of expression of journalists and, as a result, of freedom of information of citizens,
could be justified by the need to protect the legitimate confidentiality of some information.
Additionally, since the Wikileaks publications occur on the Internet, the Wikileaks case is
also related to issues of freedom of expression and freedom of information on the Internet and
of regulation of the media in the internet sphere.
23
‘ENISA statement on Wikileaks events’ ( 15 Decembre 2010) accessed on 16 February 2012
24
C Uyttendaele and J Dumortier, ‘Free Speech on the Information Superhighway: European Perspectives’,
(1998) The John Marshall Journal of Comp. & Inf. Law, vol 16, n° 4, p 912
25
26
European Convention of Human Rights, art 10, § 2
11
§ 2: Transparency versus classified information
The Wikileaks publications make light on a conflict between two important values: the
freedom of expression leading to an informative transparency on the one hand and the need to
keep some State documents confidential in order to ensure the good functioning of the State
institutions.
As we will see throughout this paper, Wikileaks perfectly illustrates that opposition because it
raises the question of the limits of transparency in a democratic society. Which information
should be disclosed by virtue of the public interest? Which documents can be legitimately
kept secret by democratic States? Which measures may be used by those States in order to
ensure the confidentiality of some of their sensitive information? All those questions are
related to the debate of the balance to be made between the need for justifiable confidentiality
of some security and diplomatic matters and the legitimate expectation of the citizens to enjoy
openness in a democratic society27.
At the heart of this debate, there is the problem of over-classification policies used by some
States. Democracy supposes that citizens are able to be aware of the actions taken in their
name by their rulers in order to be able to hold them accountable in case of malpractice.
Therefore, if the right of access to official documents is not sufficiently and effectively
organised, it may lead to a decreased liability and legitimacy for the State, camouflage of
doubtful action by officials and distrust among citizens28. Aware of that, Julian Assange
explains the reprisals against his website through this assumption: ‘The more secretive or
unjust an organization is, the more leaks induce fear and paranoia in its leadership and
planning coterie’29.
In the United States, the over-classification is a well-known fact. Joan Dempsey, former
deputy director of central intelligence, acknowledged that U.S. officials are ‘lazy about
classification’ and either classify too many documents or classify them at a too high level30.
But, assessing that the United States keep too much information secret does not mean that
secret is unjustified. Some disclosures of information are likely to harm civilians, for
diplomatic relations or for security of the U.S. troops. Wikileaks itself is aware of it. The site
itself has decided to hide some information and especially names of civilians through its
“harm minimization” policy, on the ground that it could cause harms to the persons
mentioned31.
There is thus a conflict between the legitimate imperatives of the State and the democratic
value of openness because some releases are likely to lead to debacle and tragedy for the
country. A typical illustration is the position of troops during wartime. Another example (at a
lower level of drama) is the disclosure by a State of its negotiation position or strategy in
27
Cf. Thin-Skinned” on Democratic Values? The Wikileaks Case and the Role of Secrecy in the Democratic
State, (n 20) p 1
28
D Amoedo Barreiro, ‘Wikileaks y el derecho a saber’ ( 4 May 2011)
accessed on 2 February 2012
29
Cf. Wikileaks – About Wikileaks (n 2)
30
Cf. Thin-Skinned” on Democratic Values? The Wikileaks Case and the Role of Secrecy in the Democratic
State, (n 20) p 21
31
Cf. Thin-Skinned” on Democratic Values? The Wikileaks Case and the Role of Secrecy in the Democratic
State, (n 20) p 18
12
advance, resulting in a potential disadvantage against the other negotiation parties32. But how
should legitimate disclosures be distinguished from illegitimate ones? Which secrets is a State
entitled to keep?
In these circumstances, Governments will probably have to review their classification and
management of information and computer data. An excess of classification devalues the
notion of secrecy. Less classification could thus mean more protected and less shared secrets.
§ 3: Cyber-security
Wikileaks also highlights a problem of cyber-security. Indeed, if one of the world most
powerful nations is not able to protect its diplomatic cables, this kind of situation could occur
in all security systems. It challenges the organisation of the Internet and raises doubts with
regards to the efficiency of secured communication systems.
Subsequently, those events show the increasing need to work on cyber-security. At the
European level, the European Network and Information Security Agency (ENISA) provides
assistance in the preparation of European legislation related to that issue. Since threats are
increasing, the European Commissions plans to strengthen its role and to organise exercises of
cyber-security with the States and the private actors. The Commission also want to reinforce
the sanctions applicable to cyber-piracy (up to five years imprisonment in case of aggravating
circumstances) and wishes to improve cooperation between Member States to a common front
against cyber-threats33. Of course this increase in cyber-security should not prejudice the
respect of fundamental freedoms such as freedom of expression, data protection and
privacy34. All those considerations show that cyber-security is taken seriously at the European
echelon35.
§ 4: Whistleblowing
As mentioned previously, Wikileaks is a platform for whistleblowers which publishes
documents received from particulars. Whistleblowing can be defined as ‘the disclosure by a
person, usually an employee in a government agency or in a private enterprise, to the public
or to those in authority, of mismanagement, corruption, illegality, or some other
wrongdoing’36.
At the origin of every publication of Wikileaks, there is thus an individual who has breached
his duty of professional secrecy. As a result, States are really keen to pursue whistleblowers
because it could serve as an example to discourage other potential leakers. The issue of the
liability of whistleblowers is then also implied in the Wikileaks affair.
32
Cf. Wikileaks y el derecho a saber (n 28)
33
‘La guerre du web aura-t-elle lieu?’ (Parlement Européen/Actualité 3 November 2011,
accessed on 24 January 2012
34
J M Barroso, (European Parliament – Debates 14 December 2010)
accessed on 31 March 2012
35
Cf. La guerre du web aura-t-elle lieu? (n 33)
36
Definition of Whistleblowing, accessed on 23
November 2011
13
Nevertheless, the actual society tends to recognize the important role played by
whistleblowers for democracy. As a result, they benefit sometimes from a certain protection
under national and international law. Such protection is justified by the fact that
whistleblowers risk their careers (and even more) by breaching their confidentiality duties in
order to reveal corruption and other mismanagement in the name of democracy.
§ 5: Media liability
This affair and the ongoing national prosecutions and investigations of Wikileaks and its
members also raise the question whether Wikileaks can be held responsible or co-responsible
for the breaches of State confidentiality. The potential grounds of action are numerous:
disclosure of military and diplomatic documents, illegal obtaining of documents, receipt of
the result of a breach of professional secrecy, irresponsible disclosure leading to civil liability.
But the question is whether the national and international laws and jurisprudence allow the
prosecution of journalists for those reasons. Given that Wikileaks does neither steal the leaked
documents, nor pirate them, can the organisation be prosecuted for having published someone
else’s leak37? The questions are the same for the five newspapers collaborating with
Wikileaks. It is thus necessary to verify whether Wikileaks enjoys the same status than
traditional journalism and whether it may benefit from the same level of protection than well-
known dailies such as Le Monde and The New York Times.
§ 6: Protection of sources
Protection of sources is essential in order to guarantee the good functioning of Wikileaks and
even its existence. The organization focus on an efficient protection of its sources and ensures
on its webpage that whistleblowers can post documents in an anonymous and non-identifiable
way thanks to the latest cryptography technologies. Without a robust and efficient protection
of sources, the risk is that sources who supply numerous of important information to
journalists, refuse to provide this information if their protection and anonymity is not ensured.
Those whistleblowers have indeed a lot to loose in this affair, such as a threat for their job,
their reputation, their freedom or even their life. And if people are likely to face such
intimidations, it is more than probable that they will refuse to open their mouth again…38.
This would thus be regrettable for the website because without whistleblowers’ information,
Wikileaks would not have anything to disclose anymore.
§ 7: Intellectual property rights
Some of the documents published online by Wikileaks are protected by intellectual property
rights and belong to a State administration or to private owners. It is thus legitimate to wonder
whether Wikileaks could be pursued for a breach of copyright. On this matter, two major
questions arise.
Firstly, we know that intellectual property rights incriminate the unauthorized reproduction of
certain kinds of commercial information like trade secrets. But, since there is no commercial
market for government documents, it is necessary to clarify whether if this protection extends
to such documents. However, id State documents are not at stake, Wikileaks can still be the
37
Cf. Inside Wikileaks : dans les coulisses du site Internet le plus dangereux du monde (n 4) p 209
38
P Karhula, ‘What is the effect of WikiLeaks for Freedom of Information?’ (19 January 2011)
accessed on 2
April 2012
14
subject of legal action by private parties. For example, in 2009, Wikileaks published without
permission a pirated full version of a book written by an investigative journalist about
corruption in Kenya called “It’s our turn to eat”. By disclosing the full text, it made that book
freely available and undoubtedly disrupted its sales. Of course such disclosure of privately
published books are basis for copyright infringement suits39.
Secondly, it is also important to verify whether Wikileaks can benefit from one of the
exceptions to copyright. Limitations and exceptions to copyright pursue goals of public
interest such as freedom of speech and education. The United States, for instance, allow the
‘fair use’ of an owner’s work without permission for the purpose of ‘criticism, comment, news
reporting, teaching, scholarship or research’40. Consequently, the website could argue that its
disclosure does not constitute an infringement of intellectual property rights since it
corresponded to a ‘fair use’ and that the aim of distribution was not to make financial
profits41.
At the European scale, article 5 of the copyright directive establishes a list of the copyright
limitations and exceptions that may be applied by Member States. The article 5.3, c) foresees
that the exclusive rights of the owner may be restricted for the need of news reporting42.
However, this exception is not foreseen in every Member States because this exception is
only optional, the Member States don’t have the obligation to implement it43. The outcome of
an action based on copyright infringement against Wikileaks could thus be different according
to the States in which the claim is introduced.
§ 8: Legality of pressures against Wikileaks
Since its first publications, Wikileaks has been subject to a bunch of attacks. Firstly, several
government organizations and service providers blocked the access to the website and then,
several financial institutions like PayPal, Visa and MasterCard also closed Wikileaks’ bank
accounts. This financial blockade was the subject of complaint introduced by Wikileaks to the
European Commission because it had important negative consequences for the website since
it prevents it from receiving any financial supports and donations.
Those different attacks against the website raise the question of the legality of such measures.
Firstly, those pressures may constitute an infringement of freedom of expression of the
organisation. It is indeed the first time that we observe such an attempt of censure at the
39
S Aftergoof, ‘Wikileaks Fails “Due Diligence” Review’ (28 June 2010)
accessed on 3 March 2012; finally,
Wikileaks made the book offline
40
‘A Word on Copyright: It’s a Balancing Act!’ ; Copyright
Act of 1976, section 107.
41
Ch Savage, ‘U.S. Prosecutors Study WikiLeaks Prosecution’ (7 December 2010)
accessed on 14 March 2012
42
Copyright Directive, art. 5.3.c) ‘ (…) reproduction by the press, communication to the public or making
available of published articles on current economic, political or religious topics or of broadcast works or other
subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the
source, including the author's name, is indicated, or use of works or other subject-matter in connection with the
reporting of current events, to the extent justified by the informatory purpose and as long as the source,
including the author's name, is indicated, unless this turns out to be impossible’
43
‘Implementing the EU copyright directive’ accessed on
4 April 2012
15
international scale of s publications of a website that promotes transparency44.
Secondly, it is not the task of the political power to decide whether the access to this website
has to be restricted. Indeed, if Wikileaks has committed illegal acts, it must be judged by the
Judiciary power in the framework of the law45.
Section 2: Legal issues due to territorial application of law
In addition to the material legal challenges that we have just mentioned, we will see that the
legal treatment of the organization is also made complex by the fact that its activities, its
organizations and the effects of its publications are expended in different legal order. As a
result, because of the worldwide expansion of the situation, this affair reaches a high level of
technique and of complexity.
§ 1: Extradition
As we already mentioned, the American authorities are very willing to pursue the Wikileaks
staff and more particularly, its spokesman Julian Assange. Such a prosecution will depend on
the U.S. government’s ability to extradite him but we will see that dealing with extradition
rules in this affair is far from being easy46. Indeed, the fact that Julian Assange is not
American and operates outside the United States constitutes an obstacle to his prosecution47.
The success of the U.S.A. in the extradition of Assange depends on numerous factors.
A first obstacle to Assange’s extradition is that extradition is not available for political
offenses. This political offense exception is part of every modern U.S. extradition treaty and
may pose a considerable impediment to the extradition of a foreign citizen to the United
States to face charges under the Espionage Act. Indeed, espionage has been recognized as a
typical example of a purely political offense48. It is true that the United States could argue that
it is only valid for the “classic case” of espionage or try to obtain the extradition of Assange
for other criminal charges. However, this extradition could be denied if it turns out that the
crimes for which he is blamed were considered as an offence falling under the definition of
espionage49.
Moreover, most of the modern extradition treaties provide explicit lists of crimes for which
extradition can be afforded but also lists of crimes for which extradition has to be denied50.
And it seems that no American extradition treaty currently applicable considers espionage
among the extraditable offences51.
Finally, other complications may occur because of competing extradition requests by other
44
M Simon & M A Putallaz, ‘Qui soutient encore Wikileaks ?’ (9 December 2010)
accessed on 3 March
2012
45
Ibid.
46
Cf. Disclosure’s effects: Wikileaks and Transparency (n 6) p. 11.
47
Ibid.
48
J K Elsea, ‘Criminal Prohibitions on the Publication of Classified Defense Information’ (CRS Report for
Service 8 September 2011) accessed on 5 November 2012,
Criminal Prohibitions on the Publication of Classified Defense Information, , p 17
49
Ibid.
50
Ibid.
51
Ibid.
16
States or because most countries reserve the right to refuse the extradition of one of their
national52.
§ 2: Competent jurisdiction and applicable law
Looking at all the countries implied in the Wikileaks affair, it is also difficult to determine
which State has the jurisdiction to pursue the Wikileaks team and which national law has to
be applied to the Wikileaks events.
First of all, the country the most targeted by the publications and thus the most willing to
pursue Wikileaks, and especially its co-founder and spokesman Julian Assange, is America.
Secondly, Assange is an Australian citizen, travelling worldwide and having no place of
establishment. Then, the website uses neutral server space and redirects its data through many
countries to avoid detection53. Indeed, the organization is based in a company settled in
Sweden and the documents sent to the website transit through Belgian and Icelandic servers.
The aim of this geographical dispersion is to enable Wikileaks to benefit from the legislation
of those countries which provide a particular protection to whistleblowers and to investigative
journalists and a high protection of sources54.
All those elements make it unclear whether ‘U.S. criminal law can reach into the countries
WikiLeaks uses for shelter’55. Moreover, the website can escape order to remove documents
by using mirror sites around the world (those mirror sites are exact copies of
www.wikileaks.org)56.
****
Media often say that Wikileaks is a kind of “legal puzzle”. When we see this brief inventory,
we can say that they are not that far from the reality. If the Wikileaks affair does not address
innovative legal issues, its complexity is mostly due to the involvement of a lot of legal
aspects, in a context of rising internationalization of the production of the information
together with the digitalization of information.
In the following chapters, we will focus on the liability of the actors involved in the Wikileaks
publications. Addressing questions related to the implications of Wikileaks’ activities for
democracy, freedom of expression and media ethics implies the treatment of the question of
liability. Indeed, liability lies at the heart of media ethics. This is the reason why we chose to
develop those two aspects.
Examining the question of liability in the context of Wikileaks is less easy than it seems.
Since the first glances concern the founder of Wikileaks, in a first time, we will address the
liability of the media involved in this affair (namely Wikileaks itself and the collaborating
52
Cf. Criminal Prohibitions on the Publication of Classified Defense Information (n 48) p 18
53
T McSorley, ‘Criminal liability for Wikileaks’ (American criminal law review 31 January 2011)
accessed on 3 March 2012
54
Ch Christensen, ‘Wikileaks et les mythes de l’ère numérique’ (September 2010) accessed on 3 March 2012
55
Cf. Criminal liability for Wikileaks (n Erreur ! Signet non défini.)
56
Cf Disclosure’s effects: Wikileaks and Transparency (n 6); Wikileaks - Créez un site miroir de wikileaks
accessed on 1 November 2011
17
newspapers). We will see how the European Legal order treats journalists for having
disclosed someone else’s leak and which factors or elements are taken into account by the
European jurisdictions when they have to decide whether a journalist has to be sanctioned in
such situations. But focusing on the media would be incomplete since it is important to recall
that Wikileaks could not function without whistleblowers leaking document to the site57.
Secondly, we will thus deal with the liability of the leakers. We will see in which
circumstances they are sanctioned and whether they may benefit from a protection under
European law.
57
Cf. WikiLeaks and the question of responsibility within a global democracy (n 1) p 1
18
You can also read
