[Cross-post] 'Freedom of Information in the Wikileaks Era'

This post originally appeared on the Inforrm blog.

Julian Assange is more than capable of dominating a room he’s not actually in, showed Monday’s event at the British Institute of International and Comparative Law, ‘Freedom of Information in the WikiLeaks Era’.

His lawyer Mark Stephens, however, was there to articulate (if not represent) Wikileaks’ and Assange’s position and activity as he understood it.

A panel, chaired by legal commentator Joshua Rozenberg and also including David Banisar (Article 19), Chris Bradshaw (Ministry of Justice), Andrew Murray (LSE), and James Leaton Gray (BBC) alongside Stephens, discussed the ethics, role and legal implications of Wikileaks and similar operations.

Wikileaks good or Wikileaks bad, Rozenberg asked at the end. Stephens had already left the room by that point, but the audience could probably could guess his answer.

“Both,” said Article 19′s senior legal counsel David Banisar. Bad, in the context of the UK, said the MoJ’s Bradshaw. “Bad” said Murray. “Inevitable,” said the BBC’s Leaton Gray.

But prior to that question, the Wikileaks issue was fleshed out by the panelists with several key questions emerging:

  • Can the FoI Act prevent the need for leaks? Where are its limitations?
  • Who is a journalist? What is a journalistic operation?
  • How to make the balance between right to freedom of expression and right to privacy?
  • How should/could Wikileaks be regulated?
  • How can Wikileaks’ material be verified?
  • Is Wikileaks a “source” or a commercial partner to the media organisations it works with?
  • Do public bodies have a right to keep parts of the decision making process private?
  • Do states have a right to privacy?
  • What are the legal issues arising from the emergence of ‘citizen’ journalism?

Article 19′s David Banisar put Wikileaks into context: while it had “garnered the public imagination” and done things differently, the organisation was not the first online whistleblower, and he cited Cryptome as an early example. “If you were in the techie world, you knew about Cryptome.”Additionally, the “end of government as we know it” had been slightly exaggerated, he said.

Banisar, who worked for Privacy International before joining Article 19, said that Wikileaks came under a media umbrella, but also acted as an intermediary between people with information, and the media.

One successful outcome has been Wikileaks’ influence on media method, said Banisar; Al Jazeera’s Palestine Papers have provided actual documents, as opposed to analysis of the documents. That’s a “step forward” he said, and gives “context and understanding”.

Chris Bradshaw, a lawyer in the Information and Human Rights team in Legal Directorate of the Ministry of Justice, argued that leaks are generally harmful and government information should be accessed through Freedom of Information mechanisms.

He set out the Freedom of Information process, stating that FoI officers have a duty to advise and assist people who make requests. The audience were treated to some stats: of 17,822 requests in 2009, 59% had been disclosed in full, and 29% withheld in full. The most common reason for withholding data was its personal nature.

Ministers and officials need to be able to discuss issues in private, with “thinking space”, he said. There is an effective route for disclosure through FoI, and large-scale unauthorised leaks risk adverse effects, he concluded.

Andrew Murray, Reader in Law at the London School of Economics pursued a rather more academic line, examining Wikileaks’ social basis and which legal and moral norms apply.

Referring to the central tension between right to freedom of expression and right to privacy, he said that social norms play a role in how material is treated by the media. Media illegally obtained via phone hacking is rightfully vilified, where as material such as Bradley Manning’s alleged leak, is repeated in newspapers.

Murray also touched on the advent of digital publishing, where anyone can be a journalist but do not necessarily want to obey journalists’ publishing rules.

In recent times, the government has employed more and more communication directors, he said, with spin as the “natural response” to attempts to invade government privacy.

Former journalist James Leaton Gray may work at a media organisation, but he had his gamekeeper hat on for the debate, as head of the BBC’s Information Policy and Compliance department.

In terms of his organisation’s duty under FoI, he thought it was the right of the BBC and other public broadcasters to have a private space to consider significant editorial matters.

Reminding us that Hansard began as illegal scribblings in the Gallery, he said that Wikileaks was another test of the freedom of expression balance.

While digital technology had improved accessibility and speed for releasing information, it was a retrograde step for providing context, he argued.

“I still want a journalist to act as a filter for me,” he said – not least because he didn’t want to sift through 250,000 documents online.

So, to Julian Assange’s lawyer, Mark Stephens, left to present Wikileaks’ approach. Wikileaks is more responsible than anyone really wants to recognise, he said (answering a later question, he reported that Assange had refused an offer of a couple of million pounds for the cables – from someone in the Middle East).

In his talk, Stephens pointed out that the US Embassy Cables had been available to three million people before the wider electorate were given access. Assange ran all the cables past the D-Notice committee and the Americans, he said.

“They were offered the opportunity to identify any single cable,” he said, which would fail the test of ‘we will not endanger life or an ongoing operation’. “That’s the touchstone test that the D-Notice committee has.”

All of the cables passed that test, he claimed: “There were some exceptions and they were taken out and not used.” One story which the Americans didn’t want published concerned bombing in Yemen. This caused a big discussion between the media partners [The Guardian, the New York Times, Der Spiegel, Le Monde and El País], he said, but in the end they decided it was of such importance to the public that they should publish.

“No harm came as a consequence of that but one could see the point the Americans were making. There was a dialogue going on.”

The whole process, Stephens argued, had been “sensitive” and “sensible”. “Julian wanted to take longer over the redactions process than the Guardian did.”

Stephens raised a very interesting issue [and pertinent given news of Assange's new relationship with the Telegraph] – that of media exclusivity.

“What’s interesting you have on one side of the fence a journalist who really wants the scoop, they want the exclusive. Now that doesn’t necessarily fit with someone who wants, on the other hand, freedom of information, or indeed, data in the public domain.

Assange wanted more media partners, he said. “There were a number of journalists who felt they had a sort of given right to an exclusive relationship with Julian.”

“I understand they do feel very proprietorial about their relationships, but for Julian it’s about spreading the data, spreading the information, and that is a difference.”

Stephens, echoing Banisar’s earlier point, questioned whether leaking culture was so terribly different from how it was before. Newspapers have always offered opportunity for people to deliver brown paper envelopes; now it’s no longer just dog-eared photocopies, but discs full of data, he said.

One thing was clear: it was the anonymous electronic drop box that made Wikileaks different. And it looks like it’s a technique that could be here to stay – none of the panellists suggested otherwise.

As is usual, perhaps the point, at these type of events, more unanswered questions were raised and more difficult tensions identified: not just that of Article 8 vs Article 10, but between the varying motives of state/s, journalists, leakers – and their intermediaries.

This entry was posted in freedom of expression, human rights, press freedom and tagged , . Bookmark the permalink.

One Response to [Cross-post] 'Freedom of Information in the Wikileaks Era'

  1. JTownend says:

    Update: Andrew Murray has posted the text of his talk here (a longer version of the one given on the night): http://theitlawyer.blogspot.com/2011/02/freedom-of-information-in-wikileaks-era.html

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