The bizarre legal world of WikiLeaks

Guardian book serialisation accused of containing "malicious libels".

In an extraordinary development, WikiLeaks appears to be threatening legal action over the serialisation in the Guardian of WikiLeaks: Inside Julian Assange's War on Secrecy.

The wording of the Tweet is worth considering carefully:

"The Guardian book serialization contains malicious libels. We will be taking action."

First, the use of "we" suggests that the (presumably legal) "action" is threatened by WikiLeaks as an entity, rather than by any particular individual such as its founder Julian Assange. This suggestion is supported by the fact it was sent on the official WikiLeaks Twitter feed. If this is the case, then WikiLeaks may be following the unhappy example of the British Chiropractic Association (BCA) and other organisations in making libel threats in respect of unwelcome scrutiny and comment. And, as with the BCA, such a course of action can quickly be seen as illiberal and misconceived.

Second, the alleged libels are not just your normal libels but "malicious" libels. This may be careless verbiage, but presumably this tweet was checked by a legal adviser before publication. If the invocation of "malice" was deliberate, this would be a serious (indeed defamatory) accusation against the Guardian: not only is the serialisation defaming Wikileaks, it is doing so with the wrongful motive of doing damage to WikiLeaks. However, WikiLeaks has presented no evidence of such malice.

Furthermore, WikiLeaks has not even specified the alleged libels. It has instead made a bare and vague threat, the very sort of corporate attempt to deter public scrutiny which has led many to support the libel reform campaign.

But, as the founder of WikiLeaks himself recently signed the Libel Reform petition, there is the question as to whether there is a lack of consistency with this threat to bring a libel claim against the Guardian.

In any event, the use of a libel threat makes it clear that although WikiLeaks promotes transparency and openness for others, it does not really enjoy being scrutinised itself.

This basic lack of intellectual and legal consistency can be seen elsewhere. For example, it is reported that Assange believes WikiLeaks has some form of legal ownership in the confidential and secret information that it proposes to publish. This is an astonishing and legally incorrect view, especially when a great deal of that information was provided in breach of civil and criminal law. Assange even threatened to sue the Guardian on this remarkable basis.

David Leigh, the co-author of the serialised book, calls this latest legal threat "comical". That is a generous word, and the threat at least warrants the application of the leading case of Arkell v Pressdram. However, in my view, the threat is more discrediting and worrying than funny.

The Guardian has confirmed no formal threat has been received; it may never now be sent. But whether the threat was made in earnest or not, it is another troubling indication of the increasingly muddled and paranoid world of WikiLeaks.

 

David Allen Green is legal correspondent of the New Statesman.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Is Yvette Cooper surging?

The bookmakers and Westminster are in a flurry. Is Yvette Cooper going to win after all? I'm not convinced. 

Is Yvette Cooper surging? The bookmakers have cut her odds, making her the second favourite after Jeremy Corbyn, and Westminster – and Labour more generally – is abuzz with chatter that it will be her, not Corbyn, who becomes leader on September 12. Are they right? A couple of thoughts:

I wouldn’t trust the bookmakers’ odds as far as I could throw them

When Jeremy Corbyn first entered the race his odds were at 100 to 1. When he secured the endorsement of Unite, Britain’s trade union, his odds were tied with Liz Kendall, who nobody – not even her closest allies – now believes will win the Labour leadership. When I first tipped the Islington North MP for the top job, his odds were still at 3 to 1.

Remember bookmakers aren’t trying to predict the future, they’re trying to turn a profit. (As are experienced betters – when Cooper’s odds were long, it was good sense to chuck some money on there, just to secure a win-win scenario. I wouldn’t be surprised if Burnham’s odds improve a bit as some people hedge for a surprise win for the shadow health secretary, too.)

I still don’t think that there is a plausible path to victory for Yvette Cooper

There is a lively debate playing out – much of it in on The Staggers – about which one of Cooper or Burnham is best-placed to stop Corbyn. Team Cooper say that their data shows that their candidate is the one to stop Corbyn. Team Burnham, unsurprisingly, say the reverse. But Team Kendall, the mayoral campaigns, and the Corbyn team also believe that it is Burnham, not Cooper, who can stop Corbyn.

They think that the shadow health secretary is a “bad bank”: full of second preferences for Corbyn. One senior Blairite, who loathes Burnham with a passion, told me that “only Andy can stop Corbyn, it’s as simple as that”.

I haven’t seen a complete breakdown of every CLP nomination – but I have seen around 40, and they support that argument. Luke Akehurst, a cheerleader for Cooper, published figures that support the “bad bank” theory as well.   Both YouGov polls show a larger pool of Corbyn second preferences among Burnham’s votes than Cooper’s.

But it doesn’t matter, because Andy Burnham can’t make the final round anyway

The “bad bank” row, while souring relations between Burnhamettes and Cooperinos even further, is interesting but academic.  Either Jeremy Corbyn will win outright or he will face Cooper in the final round. If Liz Kendall is eliminated, her second preferences will go to Cooper by an overwhelming margin.

Yes, large numbers of Kendall-supporting MPs are throwing their weight behind Burnham. But Kendall’s supporters are overwhelmingly giving their second preferences to Cooper regardless. My estimate, from both looking at CLP nominations and speaking to party members, is that around 80 to 90 per cent of Kendall’s second preferences will go to Cooper. Burnham’s gaffes – his “when it’s time” remark about Labour having a woman leader, that he appears to have a clapometer instead of a moral compass – have discredited him in him the eyes of many. While Burnham has shrunk, Cooper has grown. And for others, who can’t distinguish between Burnham and Cooper, they’d prefer to have “a crap woman rather than another crap man” in the words of one.

This holds even for Kendall backers who believe that Burnham is a bad bank. A repeated refrain from her supporters is that they simply couldn’t bring themselves to give Burnham their 2nd preference over Cooper. One senior insider, who has been telling his friends that they have to opt for Burnham over Cooper, told me that “faced with my own paper, I can’t vote for that man”.

Interventions from past leaders fall on deaf ears

A lot has happened to change the Labour party in recent years, but one often neglected aspect is this: the Labour right has lost two elections on the bounce. Yes, Ed Miliband may have rejected most of New Labour’s legacy and approach, but he was still a protégé of Gordon Brown and included figures like Rachel Reeves, Ed Balls and Jim Murphy in his shadow cabinet.  Yvette Cooper and Andy Burnham were senior figures during both defeats. And the same MPs who are now warning that Corbyn will doom the Labour Party to defeat were, just months ago, saying that Miliband was destined for Downing Street and only five years ago were saying that Gordon Brown was going to stay there.

Labour members don’t trust the press

A sizeable number of Labour party activists believe that the media is against them and will always have it in for them. They are not listening to articles about Jeremy Corbyn’s past associations or reading analyses of why Labour lost. Those big, gamechanging moments in the last month? Didn’t change anything.

100,000 people didn’t join the Labour party on deadline day to vote against Jeremy Corbyn

On the last day of registration, so many people tried to register to vote in the Labour leadership election that they broke the website. They weren’t doing so on the off-chance that the day after, Yvette Cooper would deliver the speech of her life. Yes, some of those sign-ups were duplicates, and 3,000 of them have been “purged”.  That still leaves an overwhelmingly large number of sign-ups who are going to go for Corbyn.

It doesn’t look as if anyone is turning off Corbyn

Yes, Sky News’ self-selecting poll is not representative of anything other than enthusiasm. But, equally, if Yvette Cooper is really going to beat Jeremy Corbyn, surely, surely, she wouldn’t be in third place behind Liz Kendall according to Sky’s post-debate poll. Surely she wouldn’t have been the winner according to just 6.1 per cent of viewers against Corbyn’s 80.7 per cent. 

Stephen Bush is editor of the Staggers, the New Statesman’s political blog.