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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Fark.com’s censorship story is a striking insight into Google’s unchecked power

The founder of the community-driven website claims its advertising revenue was cut off for five weeks.

When Microsoft launched its new search engine Bing in 2009, it wasted no time in trying to get the word out. By striking a deal with the producers of the American teen drama Gossip Girl, it made a range of beautiful characters utter the words “Bing it!” in a way that fell clumsily on the audience’s ears. By the early Noughties, “search it” had already been universally replaced by the words “Google it”, a phrase that had become so ubiquitous that anything else sounded odd.

A screenshot from Gossip Girl, via ildarabbit.wordpress.com

Like Hoover and Tupperware before it, Google’s brand name has now become a generic term.

Yet only recently have concerns about Google’s pervasiveness received mainstream attention. Last month, The Observer ran a story about Google’s auto-fill pulling up the suggested question of “Are Jews evil?” and giving hate speech prominence in the first page of search results. Within a day, Google had altered the autocomplete results.

Though the company’s response may seem promising, it is important to remember that Google isn’t just a search engine (Google’s parent company, Alphabet, has too many subdivisions to mention). Google AdSense is an online advertising service that allows many websites to profit from hosting advertisements on its pages, including the New Statesman itself. Yesterday, Drew Curtis, the founder of the internet news aggregator Fark.com, shared a story about his experiences with the service.

Under the headline “Google farked us over”, Curtis wrote:

“This past October we suffered a huge financial hit because Google mistakenly identified an image that was posted in our comments section over half a decade ago as an underage adult image – which is a felony by the way. Our ads were turned off for almost five weeks – completely and totally their mistake – and they refuse to make it right.”

The image was of a fully-clothed actress who was an adult at the time, yet Curtis claims Google flagged it because of “a small pedo bear logo” – a meme used to mock paedophiles online. More troubling than Google’s decision, however, is the difficulty that Curtis had contacting the company and resolving the issue, a process which he claims took five weeks. He wrote:

“During this five week period where our ads were shut off, every single interaction with Google Policy took between one to five days. One example: Google Policy told us they shut our ads off due to an image. Without telling us where it was. When I immediately responded and asked them where it was, the response took three more days.”

Curtis claims that other sites have had these issues but are too afraid of Google to speak out publicly. A Google spokesperson says: "We constantly review publishers for compliance with our AdSense policies and take action in the event of violations. If publishers want to appeal or learn more about actions taken with respect to their account, they can find information at the help centre here.”

Fark.com has lost revenue because of Google’s decision, according to Curtis, who sent out a plea for new subscribers to help it “get back on track”. It is easy to see how a smaller website could have been ruined in a similar scenario.


The offending image, via Fark

Google’s decision was not sinister, and it is obviously important that it tackles things that violate its policies. The lack of transparency around such decisions, and the difficulty getting in touch with Google, are troubling, however, as much of the media relies on the AdSense service to exist.

Even if Google doesn’t actively abuse this power, it is disturbing that it has the means by which to strangle any online publication, and worrying that smaller organisations can have problems getting in contact with it to solve any issues. In light of the recent news about Google's search results, the picture painted becomes more even troubling.

Update, 13/01/17:

Another Google spokesperson got in touch to provide the following statement: “We have an existing set of publisher policies that govern where Google ads may be placed in order to protect users from harmful, misleading or inappropriate content.  We enforce these policies vigorously, and taking action may include suspending ads on their site. Publishers can appeal these actions.”

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