David Allen Green

A critical and liberal look at law and policy

The £12m question: how WikiLeaks gags its own staff

“A typical open market valuation.”

By David Allen Green Published 11 May 2011 16:31

This blog has previously described the bizarre legal world of WikiLeaks where, for example, the organisation claims some form of commercial ownership over the information that has been leaked to it.

Today, the New Statesman can reveal the extent of this legal eccentricity as we publish a copy of the draconian and extraordinary legal gag that WikiLeaks imposes on its own staff.

Clause 5 of this "Confidentiality Agreement" (PDF) imposes a penalty of "£12,000,000 – twelve million pounds sterling" on anyone who breaches this legal gag.

This ludicrous – and undoubtedly unenforceable – amount is even based on "a typical open-market valuation" for the leaked information that WikiLeaks possesses.

This phraseology is consistent with WikliLeaks's perception of itself as a commercial organisation in the business of owning and selling leaked information. Indeed, there is no other sensible way of interpreting this penalty clause.

Other parts of the legal gag are just as extraordinary. The second recital paragraph, "B", provides that – like a superinjunction – the fact of the legal gag itself is subject to the gag.

So is "all newsworthy information relating to the workings of WikiLeaks". On the face of it, even revealing one is under this agreement could result in a £12m penalty, as would sharing information on how the directors conduct the organisation.

The fifth recital paragraph, "E", is just as astonishing. It purports to extend what WikiLeaks can sue for beyond any direct loss that it might suffer if the gag is breached. WikiLeaks says it can sue for both "loss of opportunity to sell the information to other news broadcasters and publishers" and "loss of value of the information".

All this legalese can only mean that WikiLeaks takes the commercial aspect of selling "its" information seriously: there would be no other reason for this document to have such precise, onerous and unusual provisions.

On the basis of this legal gag alone, it would be fair to take the view that WikiLeaks is nothing other a highly commercially charged enterprise, seeking to protect and maximise its earnings from selling information that has been leaked to it. If so, WikiLeaks is nothing other than a business.

One suspects that the various brave and well-intentioned people who have provided the leaked information would be quite unaware of – and perhaps horrified by – the express commercial intentions of WikiLeaks, as evidenced by this document.

However, for some time it has been apparent that WikiLeaks and its founder, Julian Assange, have had a "pick'n'mix" attitude to legal obligations. They seem to feel free from any restrictions in respect of confidentiality and official secrecy; but on the other hand they make routine legal threats, especially against the Guardian, so as to uphold their perceived rights to their supposed commercial "property" – leaked, sensitive information. Abidance by the law is, it would seem, something for other people.

And, as the legal gag shows, WikiLeaks sought to use the full force of the law to deter or punish anyone who leaks against it – to the tune of £12m a time.

David Allen Green is legal correspondent of the New Statesman and is a practising media lawyer. He was shortlisted for the George Orwell Prize for blogging in 2010.

Tags: wikileaks

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86 comments

Wed, 2011-05-11 23:21 — Herbert (not verified)

rk writes, 'The only reason why I like Julian is because he is getting kicked form the left and from the right. He must have done something correct then.'

What a bizarre idea. It's the cover the BBC often uses. It's totally meaningless as an argument.

Wed, 2011-05-11 23:58 — Jimbo3

This just looks like a standard procedure to make sure that any other media parties who are give access to the Wikileaks information do not take control of ownership of the information for their own financial gain.

Fri, 2011-05-13 20:18 — Yonatan (not verified)

Daniel Domscheit-Berg left WikiLeaks after disagreeing with Assange. He reputedly took a complete copy of the leaks with him. He gave a presentation at Davos (entry fees $20,000?) in front of heads of government etc outlining an alternative wikileaks. The NYT, originally out of the loop, has recently received wikileaks material that they claim came from a third party, not wikileaks. Hmmmm very interesting.

Fri, 2011-05-13 20:22 — hat_eater (not verified)

The WikiLeaks Central site claims that the leaked NDA was "neither 'draconian' nor 'extraordinary'".

http://wlcentral.org/node/1763

I wonder if the author will find the time and will to read it and refute their arguments, and perhaps provide some evidence that WikiLeaks is now a commercial organization. In my opinion the form of the NDA results from them exercising due diligence. To guarantee confidentiality of the sources, the WL team had to prevent leaks. To do that, it needed to have a big financial stick. To have that stick, it had to be able to show to the court that it indeed suffered financial damage. Hence the breathtaking figure and language.
I, unlike Mr Green, am no lawyer, so my opinion on the subject of law does not bear much weight. On the other hand, he formulating his opinions bears greater responsibility. Or so I'd like to believe.

Fri, 2011-05-13 20:26 — Yonatan (not verified)

"David Allen Green is legal correspondent of the New Statesman and is a practising media lawyer. He was shortlisted for the George Orwell Prize for blogging in 2010"

Mr Green, shame you didn't win it. This post alone would have fully justified it.

Fri, 2011-06-03 21:58 — oh dear (not verified)

Yes David, it's awful that, in a capitalist society, Wikileaks should seek to cover costs. If only everyone were like you and worked for free.

The gagging of the staff is obviously about maintaining the info's integrity and financial viability.

Assange provides an important, game-changing service that has had a huge impact, but he's still only human and is subject to the same frailties we all are. To expect him to be some kind of saint is ridiculous.

Fri, 2011-05-13 20:41 — MonicaCA (not verified)

Do you think Julian Assange deserves the Sydney Peace Foundation's gold medal? Check out the streaming on-demand video series, WikiLeaks: Security Threat or Media Savior? at FORA.tv (http://f4a.tv/eFjoq1)

Mon, 2011-06-06 05:02 — kritik1 (not verified)

If you did not like the clause of 12,000 Pounds or 12,000 Pesos, when signing a work-related-contract, you could have consulted an attorney specializing in that field.

A judge, a practicing attorney, and myself will have this to say:

"Your agreement is your contract to abide by the business terms." Harsh as it seems, it is every-bit legal, it is however not to my personal liking (as I hate dictators and manipulators) and yet an expanded overture would be: "I can sue you for every penny that you have got" or "If I find you to jeopardize the corporate interests of the firm, I will make sure the judgement gives you nothing more than the clothes on your back and a card board box to sleep in."

Thu, 2011-05-12 01:03 — Tangential (not verified)

Why wasn't this revealed by WikiLeaks? Do they think that the only information that the public shouldn't have access to is info about the organization?

Thu, 2011-05-12 01:11 — sana (not verified)

of all the things to criticize wikileaks for... *facepalm*

Thu, 2011-05-12 01:12 — David (not verified)

Please show where this imaginary £12,000,000 "penalty" is "imposed" on staff who breach the agreement. It doesn't state that anywhere in the agreement at all. This entire article is based on a falsehood. The only penalty inferred by breach of the agreement is termination.

Thu, 2011-05-12 01:21 — Colin (not verified)

No kidding, David. Someone didn't RTFPDF...

Thu, 2011-05-12 02:20 — Ben Murphy (not verified)

David - "Please show where this imaginary £12,000,000 "penalty" is "imposed" on staff who breach the agreement." That would be page 2, paragraph 5. If the employee breaches the agreement, they have made WikiLeaks lose 12,000,000.

Thu, 2011-05-19 21:50 — dun dun dun (not verified)

hahaha I OWN THIS INFORMATION, I stole it fair and square!

JPA namefagged himself for a reason. It was a strategic mistake. Where he went wrong (and WL is JPA, nothing more or less) is believing the disinfo he was passed.

Thu, 2011-05-12 02:56 — David (not verified)

@ben - Correct - it says that is a pre-estimate of the value of lost information. That's all. And what legal remedy is offered by the agreement for such a breach? An injunction. An injunction is the ONLY legal remedy offered directly by the agreement. This is simply to stop staff who get information selling it to news organizations for personal profit. At no point does it state that staff will be fined or sued. Sure, agreeing to such a value opens one up to the possibility of a civil case, however David Green's assertion that the article says Wikileaks can "sue" staff, let alone sue for a specific amount, is a lie.

Thu, 2011-05-12 02:58 — rk (not verified)

@Herbert

It's the cover the BBC often uses. It's totally meaningless as an argument....

Oh I never watch beeb, but if what you say is true about the nasty channel then I withdraw the reason for liking WIKILEAKS.

I just like. Just like that

Thu, 2011-05-12 03:11 — David (not verified)

@ben - to follow up. "8. You agree and accept that the information disclosed, or to be disclosed to you pursuant to this agreement is, by its nature, valuable proprietary information, the misuse or unauthorised disclosure of which would be _likely to cause us considerable damage_, and accordingly you concede that, without prejudice to any other rights and remedies that may be available to us in respect of Breach of this agreement, we are entitled to _relief by way of injunction_ including any interim order available from any competent court having jurisdiction over its terms." Just to emphasise that all the agreement does is make the signee agree that Wikileaks suffer the loss, and offer a direct remedy of injunction. A lawsuit may follow up in due course, but it's not offered directly by the agreement.

"Clause 5 of this "Confidentiality Agreement" (PDF) imposes a penalty of "£12,000,000 – twelve million pounds sterling" on anyone who breaches this legal gag." is not true.

"It purports to extend what WikiLeaks can sue for beyond any direct loss that it might suffer if the gag is breached." is not true.

"WikiLeaks says it can sue for both "loss of opportunity to sell the information to other news broadcasters and publishers" and "loss of value of the information"." is not true.

Those three statements sum up the entire argument against WL's NDA, and they're each complete falsehoods.

Thu, 2011-05-12 03:14 — David (not verified)

How about a retraction, David Allen Green, based on the fact that none of the statements you made (which I quoted above) are actually true?

Thu, 2011-05-12 03:20 — Neil Burrows (not verified)

Who cares? Wikileaks has done more to keep Governments on their toes than just about anyone. Which is most likely why negative attacks like this have become more common. Do we really want Murdoch's version of wikileaks? Get real.

Thu, 2011-05-12 04:44 — Mark (not verified)

@David – The contract does not foreclose monetary damages. The "by way of injunction" phrase you quote is preceded by "without prejudice to any other rights and remedies which may be available to us." WL thus left the door open to monetary sanctions.

In addition, contract law allows the non-breaching party to recover consequential damages. The other David was therefore correct that WL could try to recover for indirect losses like loss of opportunity. Paragraph E of the contract’s preamble merely makes clear the various sources of consequential damages.

The £12mil figure presumably represents the sum of these anticipated direct and indirect losses. If the court finds this to be an accurate valuation of WL’s losses, then the court will grant the £12mil. Therefore, it is correct to say that breaching the WL agreement could incur a £12mil judgment.

Thu, 2011-05-12 04:48 — Mr. Divine (not verified)

Wikileaks is about money making. Julian Assange is a big time consumerist. His stays in five star hotels are business expenses of Wikileaks.

Thu, 2011-05-12 05:48 — David (not verified)

@mark - Indeed, the door is left open to other legal action, however the only legal remedy offered within the agreement is an injunction. Let me quote again what D.G. said:

"Clause 5 of this "Confidentiality Agreement" (PDF) imposes a penalty of "£12,000,000 – twelve million pounds sterling" on anyone who breaches this legal gag."

It doesn't. It's not true. This the basis of most of the article. The rest of the article is about claiming that, therefore, WL is clearly wanting to sell information as "there would be no other reason for this document to have such precise, onerous and unusual provision".

I can think of half a dozen 'other reasons' off the top of my head, but the most obvious reason is they simply don't want staff taking submitted information and personally selling it to news organisations.

As I saw elsewhere, "If Sony doesn't want their signing keys released, and makes folks who work with the keys sign an NDA that says they won't sell the keys privately to a third party (and in this example, they COULD estimate how much monetary damage that would cause), does this imply that Sony themselves want to sell the keys to a third party? No. Yet that's the stretch in logic with David Green is hoping folks won't notice when he says it about Wikileaks."

Thu, 2011-05-12 07:36 — Luddite (not verified)

Another hero of the political-left bits the dust. The man is a complete shit. He is financially benefiting from the ill thought out actions, of a delusional young man, who is now languishing in solitary confinement, at the same time the 'shit' is living the high life.

Tue, 2011-05-17 12:42 — Seaman T

He who pays the piper will always insist on calling the tune! It's a very unfair system, Capitalism.
I guess it's much the same at the N.S.,isn't it Al?

Thu, 2011-05-12 09:43 — gyges (not verified)

Hey DAG

Your analysis is predicated upon the assumption that wikileaks are independent of the US gov/intelligence combine.

Just imagine if wikileaks are an attempted cure for what Cass Sunstein described as "crippled epistemeology".

Are wikileaks a hyperreal leaking organisation in the same way that al-qaeda are thought to be a hyppereal terrorist organisation?

Have we seen anything other than limited hangouts from the group?

Thu, 2011-05-12 09:45 — gyges (not verified)

sigh. links stripped.

Thu, 2011-05-12 22:03 — Bl@h (not verified)

@Marc,

*facepalm* what is Watergate scandal. The prefix Gate, comes from that.

Thu, 2011-05-12 09:56 — gyges (not verified)

links for 12 May at 08:43

Cass Sunstein - http://en.wikipedia.org/wiki/Cass_Sunstein

hyperreal terrorist organisation - http://nodeinthenoosphere.blogspot.com/2011/05/semiotic-hyperreality.html

limited hangout - http://en.wikipedia.org/wiki/Limited_hangout

hope they aren't shredded.

Sat, 2011-05-14 05:48 — Stanley (not verified)

This article is completely ridiculous. The author bases his claims on an unsigned unofficial document, that in fact doesn't even resemble any piece of reality.
Furthermore, this article is piece of pure politicks. The details are presented in an overblown manner, e.g. undoubtedly, extraordinary, etc. The author accuses Wikileaks attacking the Guardian, and no citation is necessary. This piece of political workmanship is undoubtedly close to "George Orwell’s ambition ‘to make political writing into an art’" (from the 2nd link).
It is a sad fact indeed that a text document without any legitimate factual backings can be claimed and presented as a fact (and the people cheer it!). I guess, it takes a good lawyer to do that.

Mon, 2011-05-16 01:47 — mendax4real (not verified)

I can see Assanges staff is once again trolling the web writing up defense for their master err leader.

Thu, 2011-05-12 23:05 — milkshake

This is not about money - the purpose of this nondisclosure agreement is to silence and crush future WL dissenters. It is also meant to stop disgruntled WL staff from distributing the WL-controlled information to media without Assange's approval.

WL is turning into a mean-spirited cult and Assange is becoming a megalomanic messiah like Ron Hubbard.

Sorry but why does he still have a stage?'s picture

Fri, 2011-06-10 16:25 — Sorry but why does he still have a stage? (not verified)

isnt this sort of stuff usually reserved for news corp?

Thu, 2011-05-12 11:21 — lixns21 (not verified)

Confidential is splet opps sorry splet as confiential? Did you type it out yourself Mr.Green

Thu, 2011-05-12 11:31 — PeteyMcPeterson

Ha! You misspelt splet in a psost abotu typos! Louser!

I think this is a good time to announce my new website it's www.wikileaks-leaks.com

I'm hoping someone will want to set up a wikileaks-leaks-leaks website to catch me out. Don't expect it to be too busy though, because I'm lying.

Why write this arcticle? Is there a motive?

Tue, 2011-05-17 17:53 — ollie14

I wonder how much of that £12m "commercial value" will be going to help Bradley Manning?

Thu, 2011-05-19 12:11 — Verax (not verified)

Green, are you jealous of Assange?//

Fri, 2011-05-13 03:20 — marinela (not verified)

The trut here:
http://my.firedoglake.com/kgosztola/2011/05/12/whats-really-in-the-leake...
People are not stupid, bear this in mind
I recommend reading this article, you already read other people also

Thu, 2011-05-12 13:07 — Tom O'Farrell (not verified)

In Canada employment contracts are not legal. Therefore not binding on the employee. All are thrown out by courts, in fact don't even make it to the courts. Most employees do not know this.

Thu, 2011-05-12 13:02 — Lamia (not verified)

"The £12mil figure presumably represents the sum of these anticipated direct and indirect losses."

You can't sustain 'losses' from someone else passing on for free property you yourself have stolen. Assange would be laughed out of court - accompanied by a hefty legal bill.

Thu, 2011-05-12 13:29 — Kettle (not verified)

In US the Republicans always support anything considering national security without questions and even Democrats live now in some sort of a bubble supporting anything what Obama does considering national security because if they did not support Obama who would they support.

The same thing here. Wikileaks supporters will always support Wikileaks even if it turned out that Assange is in fact a rapist.

To me Wikileaks was a great experiment and it is sad to see it disappeard up in Assange's ass.

Fri, 2011-05-13 10:42 — hat_eater (not verified)

I so wish Jack of Kent would publish a legal analysis of this NDA, as dispassionate and objective he used to...

Sat, 2011-05-14 16:00 — Captain Sensible (not verified)

They should show more spunk like their founder! This little gnat needs taking out?

Wed, 2011-05-11 16:42 — swatantra

The biter bit. It would be great if we had leaks from Wikileaks about Assanges personal life and how democratic that organisation is. It would help clarify a lot of things.
Whistleblowing should be encouraged in all organisations to keep themon track.

Wed, 2011-05-11 16:44 — nathanaelshcwxtw

The £12m penalty - oops, sorry, "genuine and reasonable pre-estimate" - is pretty extraordinary. Jaw-dropping.

Comparing recital B to a superinjunction is perhaps a little inflammatory - it's pretty standard to include the "existence and content of this agreement" in a confidentiality clause.

But, as you point out, what is significant is what this says about Wikileaks' approach, and the gulf between its public image of a fearless and disinterested crusaders for transparency and the rather more calculating and commercial face shown here.

Sat, 2011-05-14 16:56 — GSNP

Wikileaks provides protection to those who give information. Of course there should be Gag Rule of its staff to insure that protection to Whistleblowers.
USG is trying to intimidate all Whistleblowers with loss of pension jail even DEATH.

In view of countries propaganda & LIES OF WAR and governments stealing from its own people Gag Rule is necessary to insure the safety of lives who give this information - or we go back to NO INFORMATION.

USG intimidation will rule. Is that what you want?

Gag Rule is Life Insurance to the Whistleblower.
Support Gag Rule - or USG intimidation.
Support Life Insurance for Whistleblowers - or support possibility of death to Whistleblowers.

Wed, 2011-05-11 17:00 — David J Mudkips (not verified)

Wikileaks could have been truly great, but Assange had to use it as his personal Ego Vehicle. Net result? He became the cancer he claimed to want to eradicate.

The fact that WL disappeared up its own arse to completely is a tragedy. Time for a return to traditional Anon leaking methods; post it once, get it mirrored, watch the Streisand Effect take over

Sat, 2011-05-14 17:04 — GSNP

Dare say that Guardian would SUPPORT Gag Rule in order to get the first information they GOT from Wikileaks and New York Times as well.

Now that they got it AND USG intimidation they are willing to through Assange under the bus. Money talks and ** walks as they say.
Shows more so the need for Gag Rule - they got what they wanted so they needn't give any loyalty to the person from whom they received it. They will now get what they can from USG The Intimidators with the really big money.