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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Buying into broadband’s bigger picture

Reliable internet access must be viewed as a basic necessity, writes Russell Haworth, CEO of Nominet.

 

As we hurtle towards a connected future, in which the internet will underpin most aspects of our daily lives, connectivity will become a necessity and not a luxury. As a society, we need to consider the wider benefits of enabling internet connections for all and ensure no corner of the county is left out of the digital loop.

Currently, despite government incentive schemes and universal service obligations, the rollout of broadband is left largely to the market, which relies on fixed and wireless network operators justifying deployment based on their own business models. The commercial justification for broadband deployment relies on there being sufficient demand and enough people to pay for a broadband subscription. Put flippantly, are there enough people willing to pay for Netflix, or Amazon? However, rather than depending on the broad appeal of consumer services we need to think more holistically about the provision of internet services. If road building decisions followed the same approach, it would equate to only building a road if everyone living in the area bought yearly gym membership for the leisure centre at the end of the new tarmac. The business case is narrow, and overlooks the far-reaching and ultimately more impactful benefits that are available.

Internet is infrastructure as much as roads are, and could easily prove attractive to a wider range of companies investing in digital technology who stand to gain from internet-enabled communities. Health services are one of the most compelling business cases for internet connectivity, especially in remote, rural communities that are often in the “final five per cent” or suffering with below average internet speeds. Super-fast broadband, defined as 30 Mbps, is now available to 89 per cent of UK homes, but only 59 per cent of rural dwellings can access these speeds.

We mustn’t assume this is a minority; rural areas make up 85 per cent of English land and almost ten million people (almost a fifth of the population) live in rural communities. This figure is rising, and ageing ‒ on average, 23.5 per cent of the rural population is over 65 compared to 16.3 per cent in urban areas ‒ and this presents complicated healthcare challenges for a NHS already struggling to meet demand. It goes without saying that accessibility is an issue: only 80 per cent of rural residents live within 4km of a GP’s surgery compared to 98 per cent of the urban population.

While the NHS may not have the resources to build more surgeries and hospitals, robust broadband connections in these areas would enable them to roll out telehealth options and empower their patients with healthcare monitoring apps and diagnostic tools. This would lower demand on face-to-face services and could improve the health of people in remote areas; a compelling business case for broadband.

We can’t afford to rely on “one business case to rule them all” when it comes to internet connectivity – the needs run far beyond Netflix and Spotify, and the long-term, economic and social benefits are vast. It’s time to shift our thinking, considering internet connectivity as essential infrastructure and invest in it accordingly, especially when it comes to the needs of the remote, rural areas of the country.

Russell Haworth joined Nominet as CEO in 2015. He leads the organisation as it develops its core registry business, explores the potential of new technologies in the global internet sector, and delivers on its commitment to ensuring the internet is a force for good.

This article was taken from a New Statesman roundtable supplement "The Internet as Infrastructure: Why rural connectivity is crucial to the UK’s success"

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