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.)

Show Hide image

With everything from iPhones to clothing turning monochrome, is the West afraid of colour?

If modern design appears particularly achromatic, it only reflects the "chromophobia" which courses through the history of Western thought.

To many English observers, 1666 – the year that the poet John Dryden christened the annus mirabilis, or “year of miracles” – wasn’t especially miraculous. The country was gripped by plague and, after a hot, dry summer, the Great Fire cut a swath through London. But for Isaac Newton, then still a student, it did prove illuminating. It was in 1666 that he first used prisms to prove that white light was not a pure, indissoluble substance but was made up of different coloured rays. This was such a profound challenge to the prevailing world-view that even Newton was shaken. “I perswade my self,” he wrote, “that this Assertion above the rest appears Paradoxical, & is with most difficulty admitted.”

The belief that colours are inferior and therefore naturally subordinate, rather than fundamental, was not new in Newton’s day, nor did it end with his discovery of spectral colour. A pattern of chromophobia – an aversion to colours – courses through Western thought.

Writing in the fourth century BC, Aristotle argued: “The most attractive colours would never yield as much pleasure as a definite image without colour.” For Renaissance artists, this idea was defined by the division between disegno, drawing or design, and colore. Disegno was the foundation of any serious artistic endeavour. The preference for achromatic, “intellectual” form is also evident in architecture. Despite rock-solid evidence from the 19th century proving that Greek marble buildings and statues were once brightly painted, the classical ideal has remained anachronistically bleached. And while modernist and postmodern architects have made some use of colour, the primacy of form is unmistakable in the work of everyone from John Pawson to Zaha Hadid and Toyo Ito.

A broad cultural dislike of colour is curious because, speaking in evolutionary terms, our ability to see it has been crucial to our success. Colour vision in primates developed between 38 and 65 million years ago and makes us better able to find ripening red and yellow fruits amid green foliage. Neurons devoted to visual processing occupy much more of our neocortex real estate than those devoted to hearing or touch. Estimates vary but the Optical Society of America has suggested that it may be possible for humans to distinguish between up to ten million different shades.

And we have put this skill to good use. Bold colours have been used by many cultures to mark temporal and spiritual power. Tyrian purple, a rich, reddish dye said to resemble clotted blood, was made using an extract from two different kinds of Mediterranean shellfish and was beloved by emperors in the ancient world. A single pound of dyed cloth would cost a skilled craftsman three years’ wages and became steadily more expensive as the shellfish became rarer.

But even as such saturated colours were coveted, they also elicited disgust. The manufacture of many, including Tyrian purple, involved ingredients such as stale urine and dung. Dye and paintworks were relegated to the urban fringes. Increasingly, the wearing of bright colours was seen as vainglorious and ungodly. Protestants indicated their humility by whitewashing over jewel-coloured murals and smashing stained-glass windows in churches, and by restricting their sartorial palette predominantly to black. An echo prevails today in men’s suits: colours are largely confined to small accessories such as ties and white shirts are held up as the ne plus ultra of refined sophistication. (The late Apple co-founder Steve Jobs went one better, opting for a uniform of identical black turtlenecks.)

One reason for this distrust is that colours are difficult to conceptualise. Do they exist physically, or only in our brains? Does everyone see them the same way? Colours have been maligned as chaotic, fickle, irrational and female. The early Christian thinker St Augustine of Hippo accused them of “a seductive and dangerous sweetness”.

Our ambivalence to colour, however, has profited white. Like black, white has not been classed as a real colour since Newton. It has almost become an anti-colour. Take Apple, for example. Although Sir Jony Ive is usually credited with the company’s love for monochrome products (it was certainly Ive who brought this to its apogee), the trend predates his arrival. It can be traced back to the “Snow White” design language developed in the 1980s. Today, as consumer neophilia demands that technology be continually refreshed, Apple’s higher-end products are available in the smallest range of colours – usually just white, black and, for the Asian market, gold – while those lower down come in a slew of fruity brights.

White is not only big business for Apple. In 2014, a Californian man named Walter Liew was found guilty of 20 counts of economic espionage and sentenced to 15 years in jail for selling the secret to a very special shade of titanium-oxide white, used in everything from luxury cars to tennis courts, to Chinese firms for $28m.

Perhaps the final word on the matter should go to Le Corbusier. In 1925, the great modernist recommended that all interior walls should be whitewashed, to act as a moral and spiritual restorative. But he wasn’t just advocating white for white’s sake: although he continued to dabble with colour, he disapproved of it, too. “Let us leave to the clothes-dyers,” he wrote, “the sensory jubilations of the paint tube.”

“The Secret Lives of Colour” (John Murray) by Kassia St Clair will be published on 20 October

This article first appeared in the 26 May 2016 issue of the New Statesman, The Brexit odd squad