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.)

ILONA WELLMANN/MILLENNIUM IMAGES, UK
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How the internet has democratised pornography

With people now free to circumvent the big studios, different bodies, tastes and even pubic hair styles are being represented online.

Our opinions and tastes are influenced by the media we consume: that much is obvious. But although it’s easy to have that conversation if the medium we are discussing is “safe for work”, pornography carries so much stigma that we only engage with it on simple terms. Porn is either “good” or “bad”: a magical tool for ­empowerment or a destructive influence on society. Many “pro-porn” campaigners shy away from nuanced critique, fearing it could lead to censorship. “Anti-porn” campaigners, convinced that porn is harmful by definition, need look no further than the mainstream tube sites – essentially, aggregators of clips from elsewhere – to gather examples that will back them up.

When we talk about the influence of porn, the emphasis is usually on a particular type of video – hardcore sex scenes featuring mostly slim, pubic-hairless women and faceless men: porn made for men about women. This kind of porn is credited with everything from the pornification of pop music to changing what we actually do in bed. Last year the UK government released a policy note that suggested porn was responsible for a rise in the number of young people trying anal sex. Although the original researcher, Cicely Marston, pointed out that there was no clear link between the two, the note prompted a broad debate about the impact of porn. But in doing so, we have already lost – by accepting a definition of “porn” shaped less by our desires than by the dominant players in the industry.

On the day you read this, one single site, PornHub, will get somewhere between four and five million visits from within the UK. Millions more will visit YouPorn, Tube8, Redtube or similar sites. It’s clear that they’re influential. Perhaps less clear is that they are not unbiased aggregators: they don’t just reflect our tastes, they shape what we think and how we live. We can see this even in simple editorial decisions such as categorisation: PornHub offers 14 categories by default, including anal, threesome and milf (“mum I’d like to f***”), and then “For Women” as a separate category. So standard is it for mainstream sites to assume their audience is straight and male that “point of view” porn has become synonymous with “top-down view of a man getting a blow job”. Tropes that have entered everyday life – such as shaved pubic hair – abound here.

Alongside categories and tags, tube sites also decide what you see at the top of their results and on the home page. Hence the videos you see at the top tend towards escalation to get clicks: biggest gang bang ever. Dirtiest slut. Horniest milf. To find porn that doesn’t fit this mould you must go out of your way to search for it. Few people do, of course, so the clickbait gets promoted more frequently, and this in turn shapes what we click on next time. Is it any wonder we’ve ended up with such a narrow definition of porn? In reality, the front page of PornHub reflects our desires about as accurately as the Daily Mail “sidebar of shame” reflects Kim Kardashian.

Perhaps what we need is more competition? All the sites I have mentioned are owned by the same company – MindGeek. Besides porn tube sites, MindGeek has a stake in other adult websites and production companies: Brazzers, Digital Playground, Twistys, PornMD and many more. Even tube sites not owned by MindGeek, such as Xhamster, usually follow the same model: lots of free content, plus algorithms that chase page views aggressively, so tending towards hardcore clickbait.

Because porn is increasingly defined by these sites, steps taken to tackle its spread often end up doing the opposite of what was intended. For instance, the British government’s Digital Economy Bill aims to reduce the influence of porn on young people by forcing porn sites to age-verify users, but will in fact hand more power to large companies. The big players have the resources to implement age verification easily, and even to use legislation as a way to expand further into the market. MindGeek is already developing age-verification software that can be licensed to other websites; so it’s likely that, when the bill’s rules come in, small porn producers will either go out of business or be compelled to license software from the big players.

There are glimmers of hope for the ethical porn consumer. Tube sites may dominate search results, but the internet has also helped revolutionise porn production. Aspiring producers and performers no longer need a contract with a studio – all that’s required is a camera and a platform to distribute their work. That platform might be their own website, a dedicated cam site, or even something as simple as Snapchat.

This democratisation of porn has had positive effects. There’s more diversity of body shape, sexual taste and even pubic hair style on a cam site than on the home page of PornHub. Pleasure takes a more central role, too: one of the most popular “games” on the webcam site Chaturbate is for performers to hook up sex toys to the website, with users paying to try to give them an orgasm. Crucially, without a studio, performers can set their own boundaries.

Kelly Pierce, a performer who now works mostly on cam, told me that one of the main benefits of working independently is a sense of security. “As long as you put time in you know you are going to make money doing it,” she said. “You don’t spend your time searching for shoots, but actually working towards monetary gain.” She also has more freedom in her work: “You have nobody to answer to but yourself, and obviously your fans. Sometimes politics comes into play when you work for others than yourself.”

Cam sites are also big business, and the next logical step in the trickle-down of power is for performers to have their own distribution platforms. Unfortunately, no matter how well-meaning your indie porn project, the “Adult” label makes it most likely you’ll fail. Mainstream payment providers won’t work with adult businesses, and specialist providers take a huge cut of revenue. Major ad networks avoid porn, so the only advertising option is to sign up to an “adult” network, which is probably owned by a large porn company and will fill your site with bouncing-boob gifs and hot milfs “in your area”: exactly the kind of thing you’re trying to fight against. Those who are trying to take on the might of Big Porn need not just to change what we watch, but challenge what we think porn is, too.

The internet has given the porn industry a huge boost – cheaper production and distribution, the potential for more variety, and an influence that it would be ridiculous to ignore. But in our failure properly to analyse the industry, we are accepting a definition of porn that has been handed to us by the dominant players in the market.

Girl on the Net writes one of the UK’s most popular sex blogs: girlonthenet.com

This article first appeared in the 16 February 2017 issue of the New Statesman, The New Times