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.)

Flickr: B.S.Wise/YouTube
Show Hide image

Extremist ads and LGBT videos: do we want YouTube to be a censor, or not?

Is the video-sharing platform a morally irresponsible slacker for putting ads next to extremist content - or an evil, tyrannical censor for restricting access to LGBT videos?

YouTube is having a bad week. The Google-owned video-sharing platform has hit the headlines twice over complaints that it 1) is not censoring things enough, and 2) is censoring things too much.

On the one hand, big brands including Marks & Spencer, HSBC, and RBS have suspended their advertisements from the site after a Times investigation found ads from leading companies – and even the UK government – were shown alongside extremist videos. On the other, YouTubers are tweeting #YouTubeIsOverParty after it emerged that YouTube’s “restricted mode” (an opt-in setting that filters out “potentially objectionable content”) removes content with LGBT themes.

This isn’t the first time we’ve seen a social media giant be criticised for being a lax, morally irresponsible slacker and an evil, tyrannical censor and in the same week. Last month, Facebook were criticised for both failing to remove a group called “hot xxxx schoolgirls” and for removing a nude oil painting by an acclaimed artist.

That is not to say these things are equivalent. Quite obviously child abuse imagery is more troubling than a nude oil painting, and videos entitled “Jewish People Admit Organising White Genocide” are endlessly more problematic than those called “GAY flag and me petting my cat” (a highly important piece of content). I am not trying to claim that ~everything is relative~ and ~everyone deserves a voice~. Content that breaks the law must be removed and LGBT content must not. Yet these conflicting stories highlight the same underlying problem: it is a very bad idea to trust a large multibillion pound company to be the arbiter of what is or isn’t acceptable.

This isn’t because YouTube have some strange agenda where it can’t get enough of extremists and hate the LGBT community. In reality, the company’s “restricted mode” also affects Paul Joseph Watson, a controversial YouTuber whose pro-Trump conspiracy theory content includes videos titled “Islam is NOT a Religion of Peace” and “A Vote For Hillary is a Vote For World War 3”, as well as an interview entitled “Chuck Johnson: Muslim Migrants Will Cause Collapse of Europe”. The issue is that if YouTube did have this agenda, it would have complete control over what it wanted the world to see – and not only are we are willingly handing them this power, we are begging them to use it.

Moral panics are the most common justification for extreme censorship and surveillance methods. “Catching terrorists” and “stopping child abusers” are two of the greatest arguments for the dystopian surveillance measures in Theresa May’s Investigatory Powers Act and Digital Economy Bill. Yet in reality, last month the FBI let a child pornographer go free because they didn’t want to tell a court the surveillance methods they used to catch him. This begs the question: what is the surveillance really for? The same is true of censorship. When we insist that YouTube stop this and that, we are asking it to take complete control – why do we trust that this will reflect our own moral sensibilities? Why do we think it won't use this for its own benefit?

Obviously extremist content needs to be removed from YouTube, but why should YouTube be the one to do it? If a book publisher released A Very Racist Book For Racists, we wouldn’t trust them to pull it off the shelves themselves. We have laws (such as the Racial and Religious Hatred Act) that ban hate speech, and we have law enforcement bodies to impose them. On the whole, we don’t trust giant commercial companies to rule over what it is and isn’t acceptable to say, because oh, hello, yes, dystopia.

In the past, public speech was made up of hundreds of book publishers, TV stations, film-makers, and pamphleteers, and no one person or company had the power to censor everything. A book that didn’t fly at one publisher could go to another, and a documentary that the BBC didn’t like could find a home on Channel 4. Why are we happy for essentially two companies – Facebook and Google – to take this power? Why are we demanding that they use it? Why are we giving them justification to use it more, and more, and more?

In response to last week’s criticism about extremist videos on the YouTube, Google UK managing director Ronan Harris said that in 2016 Google removed nearly 2 billion ads, banned over 100,000 publishers, and prevented ads from showing on over 300 million YouTube videos. We are supposed to consider this a good thing. Why? We don't know what these adverts were for. We don't know if they were actually offensive. We don't know why they were banned. 

As it happens, YouTube has responded well to the criticism. In a statement yesterday, Google's EMEA President, Matt Brittin, apologised to advertisers and promised improvements, and in a blog this morning, Google said it is already "ramping up changes". A YouTube spokesperson also tweeted that the platform is "looking into" concerns about LGBT content being restricted. But people want more. The Guardian reported that Brittin declined three times to answer whether Google would go beyond allowing users to flag offensive material. Setting aside Brexit, wouldn't you rather it was up to us as a collective to flag offensive content and come together to make these decisions? Why is it preferable that one company takes a job that was previously trusted to the government? 

Editor’s Note, 22 March: This article has been updated to clarify Paul Joseph Watson’s YouTube content.

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