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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Clickbaiting terror: what it’s like to write viral news after a tragedy

Does the viral news cycle callously capitalise on terrorism, or is it allowing a different audience to access important news and facts?

On a normal day, Alex* will write anywhere between five to ten articles. As a content creator for a large viral news site, they [Alex is speaking under the condition of strict anonymity, meaning their gender will remain unidentified] will churn out multiple 500-word stories on adorable animals, optical illusions, and sex. “People always want to read about sexuality, numbers of sexual partners, porn habits and orgasms,” says Alex. “What is important is making the content easily-digestible and engaging.”

Alex is so proficient at knowing which articles will perform well that they frequently “seek stories that fit a certain template”. Though the word “clickbait” conjures up images of cute cat capers, Alex says political stories that “pander to prejudices” generate a large number of page views for the site. Many viral writers know how to tap into such stories so their takes are shared widely – which explains the remarkably similar headlines atop many internet articles. “This will restore your faith in humanity,” could be one; “This one weird trick will change your life…” another. The most cliché example of this is now so widely mocked that it has fallen out of favour:

You’ll never believe what happened next.

When the world stops because of a tragedy, viral newsrooms don’t. After a terrorist attack such as this week’s Manchester Arena bombing, internet media sites do away with their usual stories. One day, their homepages will be filled with traditional clickbait (“Mum Sickened After Discovery Inside Her Daughter’s Easter Egg”, “This Man’s Blackhead Removal Technique Is A Complete And Utter Gamechanger”) and the next, their clickbait has taken a remarkably more tragic tone (“New Footage Shows Moment Explosion Took Place Inside Manchester Arena”, “Nicki Minaj, Rihanna, Bruno Mars and More React to the Manchester Bombing”).

“When a terrorist event occurs, there’s an initial vacuum for viral news,” explains Alex. Instead of getting reporters on the scene or ringing press officers like a traditional newsroom, Alex says viral news is “conversation-driven” – meaning much of it regurgitates what is said on social media. This can lead to false stories spreading. On Tuesday, multiple viral outlets reported – based on Facebook posts and tweets – that over 50 accompanied children had been led to a nearby Holiday Inn. When BuzzFeed attempted to verify this, a spokesperson for the hotel chain denied the claim.

Yet BuzzFeed is the perfect proof that viral news and serious news can coexist under the same roof. Originally famed for its clickable content, the website is now home to a serious and prominent team of investigative journalists. Yet the site has different journalists on different beats, so that someone writes about politics and someone else about lifestyle or food.

Other organisations have a different approach. Sam* works at another large viral site (not Buzzfeed) where they are responsible for writing across topics; they explains how this works:  

“One minute you're doing something about a tweet a footballer did, the next it's the trailer for a new movie, and then bam, there's a general election being called and you have to jump on it,” they say.

Yet Sam is confident that they cover tragedy correctly. Though they feel viral news previously used to disingenuously “profiteer” off terrorism with loosely related image posts, they say their current outlet works hard to cover tragic news. “It’s not a race to generate traffic,” they say, “We won't post content that we think would generate traffic while people are grieving and in a state of shock, and we're not going to clickbait the headlines to try and manipulate it into that for obvious reasons.”

Sam goes as far as to say that their viral site in fact has higher editorial standards than “some of the big papers”. Those who might find themselves disturbed to see today’s explosions alongside yesterday’s cats will do well to remember that “traditional” journalists do not always have a great reputation for covering tragedy.

At 12pm on Tuesday, Daniel Hett tweeted that over 50 journalists had contacted him since he had posted on the site that his brother, Martyn, was missing after the Manchester attack. Hett claimed two journalists had found his personal mobile phone number, and he uploaded an image of a note a Telegraph reporter had posted through his letterbox. “This cunt found my house. I still don't know if my brother is alive,” read the accompanying caption. Tragically it turned out that Martyn was among the bomber's victims.

Long-established newspapers and magazines can clearly behave just as poorly as any newly formed media company. But although they might not always follow the rules, traditional newspapers do have them. Many writers for viral news sites have no formal ethical or journalistic training, with little guidance provided by their companies, which can cause problems when tragic news breaks.

It remains to be seen whether self-policing will be enough. Though false news has been spread, many of this week’s terror-focused viral news stories do shed light on missing people or raise awareness of how people can donate blood. Many viral news sites also have gigantic Facebook followings that far outstrip those of daily newspapers – meaning they can reach more people. In this way, Sam feels their work is important. Alex, however, is less optimistic.

“My personal view is that viral news does very little to inform people at times like this and that trending reporters probably end up feeling very small about their jobs,” says Alex. “You feel limited by the scope of your flippant style and by what the public is interested in.

“You can end up feeding the most divisive impulses of an angry public if you aren’t careful about what conversations you’re prompting. People switch onto the news around events like this and traffic rises, but ironically it’s probably when trending reporters go most into their shells and into well-worn story formats. It’s not really our time or place, and to try and make it so feels childish.”

Amelia Tait is a technology and digital culture writer at the New Statesman.

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