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

“A typical open market valuation.”

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.

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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Age verification rules won't just affect porn sites – they'll harm our ability to discuss sex

Relying on censorship to avoid talking about sex lets children down.

The British have a long history of censoring sex. In 1580, politician William Lambarde drafted the first bill to ban "licentious" and "hurtful... books, pamphlets, ditties, songs, and other works that promote the art of lascivious ungodly love". Last week, the UK government decided to have another crack at censorship, formally announcing that age verification for all online pornographic content will be mandatory from April 2018.

It is unclear at this point what this mandatory check will entail, but it's expected that you will need to submit your credit card details to a site before being allowed to access adult content (credit cards can’t be issued to under-18s).

The appointed regulator will almost certainly be the British Board of Film Classification who will have the authority to levy fines of up to £250,000 or shut down sites that do not comply. These measures are being directly linked to research conducted by the NSPCC, the Children’s Commissioner and the University of Middlesex in 2016, which surveyed more than 1,000 11 to 16-year-olds about viewing online pornography and found over half had accessed it. 

Digital minister Matt Hancock said age verification "means that while we can enjoy the freedom of the web, the UK will have the most robust internet child protection measures of any country in the world". And who can argue with that? No sane adult would think that it’s a good idea for children to watch hardcore pornography. And because we all agree kids should be watching Peppa Pig rather than The Poonies, the act has been waved through virtually unchallenged.

So, let’s put the issue of hardcore pornography to one side, because surely we are all in agreement. I’m asking you to look at the bigger picture. It’s not just children who will be censored and it’s not just Pornhub and Redtube which will be forced to age check UK viewers. This act will potentially censor any UK site that carries adult content, which is broadly defined by the BBFC as "that it was produced solely or principally for the purposes of sexual arousal".

I am a UK academic and research the history of sexuality. I curate the online research project www.thewhoresofyore.com, where academics, activists, artists and sex workers contribute articles on all aspects of sexuality in the hope of joining up conversations around sex that affect everyone. The site also archives many historical images; from the erotic brothel frescoes of Pompeii to early Victorian daguerreotypes of couples having sex. And yet, I do not consider myself to be a porn baron. These are fascinating and important historical documents that can teach us a great deal about our own attitudes to sex and beauty.

The site clearly signposts the content and asks viewers to click to confirm they are over 18, but under the Digital Economy Act this will not be enough. Although the site is not for profit and educational in purpose, some of the historical artefacts fit the definition of  "pornographic’" and are thereby liable to fall foul of the new laws.

And I’m not the only one; erotic artists, photographers, nude models, writers, sex shops, sex education sites, burlesque sites, BDSM sites, archivists of vintage erotica, and (of course) anyone in the adult industry who markets their business with a website, can all be termed pornographic and forced to buy expensive software to screen their users or risk being shut down or fined. I have contacted the BBFC to ask if my research will be criminalised and blocked, but was told "work in this area has not yet begun and so we are not in a position to advice [sic] you on your website". No one is able to tell me what software will need to be purchased if I am to collect viewers' credit card details, how I would keep them safe, or how much this would all cost. The BBFC suggested I contact my MP for further details. But, she doesn’t know either.

Before we even get into the ethical issues around adults having to enter their credit card details into a government database in order to look at legal content, we need to ask: will this work? Will blocking research projects like mine make children any safer? Well, no. The laws will have no power over social media sites such as Twitter, Snapchat and Periscope which allow users to share pornographic images. Messenger apps will still allow users to sext, as well as stream, send and receiving pornographic images and videos. Any tech savvy teenager knows that Virtual Private Network (VPN) software will circumvent UK age verification restrictions, and the less tech savvy can always steal their parents' credit card details.

The proposed censorship is unworkable and many sites containing nudity will be caught in the crossfire. If we want to keep our children "safe" from online pornography, we need to do something we British aren’t very good at doing; we need to talk openly and honestly about sex and porn. This is a conversation I hope projects like mine can help facilitate. Last year, Pornhub (the biggest porn site in the world) revealed ten years of user data. In 2016, Brits visited Pornhub over 111 million times and 20 per cent of those UK viewers are women. We are watching porn and we need to be open about this. We need to talk to each other and we need to talk to our kids. If you’re relying on government censorship to get you out of that tricky conversation, you are letting your children down.

The NSPCC report into children watching online pornography directly asked the participants about the effectiveness of age verification, and said the children "pointed out its limitations". When asked what intervention would most benefit them, this was the overwhelming response: "Whether provided in the classroom, or digitally, young people wanted to be able to find out about sex and relationships and about pornography in ways that were safe, private and credible." I suggest we listen to the very people we are trying to protect and educate, rather than eliminate. 

Dr Kate Lister researches the history of sexuality at Leeds Trinity University