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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The UK press’s timid reaction to Brexit is in marked contrast to the satire unleashed on Trump

For the BBC, it seems, to question leaving the EU is to be unpatriotic.

Faced with arguably their biggest political-cum-constitutional ­crisis in half a century, the press on either side of the pond has reacted very differently. Confronting a president who, unlike many predecessors, does not merely covertly dislike the press but rages against its supposed mendacity as a purveyor of “fake news”, the fourth estate in the US has had a pretty successful first 150-odd days of the Trump era. The Washington Post has recovered its Watergate mojo – the bloodhound tenacity that brought down Richard Nixon. The Post’s investigations into links between the Kremlin and Donald Trump’s associates and appointees have yielded the scalp of the former security adviser Michael Flynn and led to Attorney General Jeff Sessions recusing himself from all inquiries into Trump-Russia contacts. Few imagine the story will end there.

Meanwhile, the New York Times has cast off its image as “the grey lady” and come out in sharper colours. Commenting on the James Comey memo in an editorial, the Times raised the possibility that Trump was trying to “obstruct justice”, and called on Washington lawmakers to “uphold the constitution”. Trump’s denunciations of the Times as “failing” have acted as commercial “rocket fuel” for the paper, according to its CEO, Mark Thompson: it gained an “astonishing” 308,000 net digital news subscriptions in the first quarter of 2017.

US-based broadcast organisations such as CNN and ABC, once considered slick or bland, have reacted to Trump’s bullying in forthright style. Political satire is thriving, led by Saturday Night Live, with its devastating impersonations of the president by Alec Baldwin and of his press secretary Sean Spicer by the brilliant Melissa McCarthy.

British press reaction to Brexit – an epic constitutional, political and economic mess-up that probably includes a mind-bogglingly destructive self-ejection from a single market and customs union that took decades to construct, a move pushed through by a far-right faction of the Tory party – has been much more muted. The situation is complicated by the cheerleading for Brexit by most of the British tabloids and the Daily Telegraph. There are stirrings of resistance, but even after an election in which Theresa May spectacularly failed to secure a mandate for her hard Brexit, there is a sense, though the criticism of her has been intense, of the media pussy-footing around a government in disarray – not properly interrogating those who still seem to promise that, in relation to Europe, we can have our cake and eat it.

This is especially the case with the BBC, a state broadcaster that proudly proclaims its independence from the government of the day, protected by the famous “arm’s-length” principle. In the case of Brexit, the BBC invoked its concept of “balance” to give equal airtime and weight to Leavers and Remainers. Fair enough, you might say, but according to the economist Simon Wren-Lewis, it ignored a “near-unanimous view among economists that Brexit would hurt the UK economy in the longer term”.

A similar view of “balance” in the past led the BBC to equate views of ­non-scientific climate contrarians, often linked to the fossil-fuel lobby, with those of leading climate scientists. Many BBC Remainer insiders still feel incensed by what they regard as BBC betrayal over Brexit. Although the referendum of 23 June 2016 said nothing about leaving the single market or the customs union, the Today presenter Justin Webb, in a recent interview with Stuart Rose, put it like this: “Staying in the single market, staying in the customs union – [Leave voters would say] you might as well not be leaving. That fundamental position is a matter of democracy.” For the BBC, it seems, to question Brexit is somehow to be unpatriotic.

You might think that an independent, pro-democratic press would question the attempted use of the arcane and archaic “royal prerogative” to enable the ­bypassing of parliament when it came to triggering Article 50, signalling the UK’s departure from the EU. But when the campaigner Gina Miller’s challenge to the government was upheld by the high court, the three ruling judges were attacked on the front page of the Daily Mail as “enemies of the people”. Thomas Jefferson wrote that he would rather have “newspapers without a government” than “a government without newspapers”. It’s a fair guess he wasn’t thinking of newspapers that would brand the judiciary as “enemies of the people”.

It does seem significant that the United States has a written constitution, encapsulating the separation and balance of powers, and explicitly designed by the Founding Fathers to protect the young republic against tyranny. When James Madison drafted the First Amendment he was clear that freedom of the press should be guaranteed to a much higher degree in the republic than it had been in the colonising power, where for centuries, after all, British monarchs and prime ministers have had no qualms about censoring an unruly media.

By contrast, the United Kingdom remains a hybrid of monarchy and democracy, with no explicit protection of press freedom other than the one provided by the common law. The national impulse to bend the knee before the sovereign, to obey and not question authority, remains strangely powerful in Britain, the land of Henry VIII as well as of George Orwell. That the United Kingdom has slipped 11 places in the World Press Freedom Index in the past four years, down to 40th, has rightly occasioned outrage. Yet, even more awkwardly, the United States is three places lower still, at 43rd. Freedom of the press may not be doing quite as well as we imagine in either country.

Harry Eyres is the author of Horace and Me: Life Lessons from an Ancient Poet (2013)

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder