Dec 14 2010

Wikileaks and Freedom of Speech: Can self regulation work?

Mark Stephens is right when he says that the current controversy around Wikileaks marks a key moment in the evolution of media responsibility and freedom. Legal matters – starting with the extradition hearing of Julian Assange this week – will move rather quickly even though it is going to take some time to work through the broader implications. Stephens says that the case engages article 10 of the European Convention – the right to free speech – but it remains to be seen how and if such a freedom could be invoked in Assange’s defence. Ultimately, there will be a question of balancing Assange’s speech rights (along with our right to know) and the rights of others such as citizens and soldiers that may have been endangered.

What is new and transformative about Wikileaks is that the organisation is deliberately attempting to operate outside of any national jurisdiction. In this sense, the site is attempting to test the regulability of the internet, among other things (see Jonathon Zittrain’s Wikileaks FAQ). If Assange’s own theorisations are to be believed, the aim ultimately could be to implement a rather literal vision of John Perry Barlow’s 1996 Declaration of the Independence of Cyberspace, which claimed that the laws of states had no jurisdiction on the internet.

Like newspapers, Wikileaks acts as an intermediary by making a credible promise to protect sources of leaks, and by bringing public interest material to the public. But the organisation does so outside of the legal and ethical frameworks that have traditionally ensured that media do so in a responsible way. Whilst it is by now clear that Wikileaks and its supporters deliberately eschew legal regulation of what they do, it remains to be seen if they are prepared to engage with a broader debate about ethics and self regulation.

Freedom of speech is protected in democratic countries, but it is not an absolute right: it must be balanced with other rights and other people’s rights, such as the rights of service personnel whose lives may be endangered by publication. Newspapers and broadcasters, even where they enjoy constitutional free speech protection – act within the legal framework of the country in which their presses and transmitters are situated. It is ultimately the courts, in a dialogue with professional journalists, editors and self regulatory bodies, that do the difficult work of combing through material to balance those competing rights, and determining whether the right to publish is justified.

In Europe, ‘The Reynolds defence’ of responsible journalism has been open to those publishing ‘in the public interest.’ If journalists act responsibly and without malice, Judges have deferred to self regulatory codes and councils – and journalists themselves – to decide what is in the public interest, and whether journalists are acting in accordance with professional ethics. No such established ethical frameworks are established at Wikileaks. It is this, together with the volume and quality of material that is published, which explains the impact and controversy around the latest round of leaks.

Another real game-changer about the current story is the degree of publicity Wikileaks is receiving thanks to the latest leak. As long as this organisation exists, never again will a whistleblower with a genuine desire to publish something have to think twice about where to go. As an organization, Wikileaks genuinely threatens existing structures of state power because it exists outside of national jurisdictions and outside of established balances and institutions.

And the scale and volume of whistleblowing that Wikileaks will now receive will pose their own challenges. If there is a surge in the amount of material leaked to Wikileaks, how will the site be able to cope with the complex ethical issues raised? There are balances to be struck. Wikileaks attempted to negotiate with the US government the release of the cables with their security impact in mind. In part the site turned to their seasoned media partners for help. But if Wikileaks takes such an ethical balancing act seriously, it will inevitably have to develop more formal ethical guidelines – like the D-Notice guidelines in the UK and the PCC code on Public Interest – and Wikileaks will also have to be more sensitive to a variety of national contexts even if it has no assets in those jurisdictions.

Assange’s lawyer, Mark Stephens, came rather close to claiming that the arrest of Julian Assange appears to be a holding operation on behalf of the US. If this is the case, it is likely to come to light sooner or later, and be highly embarrassing to government and legal authorities in the UK. But US, UK and Swedish authorities are not the only ones likely to emerge sullied from this story. Wikileaks, perhaps more than any other media organisation in history, took the Duke of Wellington’s dictum ‘publish and be damned’ literally. If they don’t find a way to engage with the debate about ethics of publication, they will be.

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5 Responses to Wikileaks and Freedom of Speech: Can self regulation work?

  1. Damian,
    This is a great article and incredibly helpful for those of us trying to work out the consequences and significance of Wikileaks. I agree with what you say here but I think we all need to recognise two other concepts that, by their nature, fall outside of the conventional regulatory schema, mainly because they are quite fuzzy!
    Firstly, journalists of all kinds have to be allowed to cause harm and make mistakes. If they were always mindful of the possible negative consequences of publication then virutally nothing challenging of the status quo would ever see the light of day. The definition of ‘in the public interest’ is highly contentious and tends to be settled by and in favour of those seeking to protect themselves from scrutiny.
    Normally, revelatory ‘irresponsible’ journalism has not really been a problem as the examples of speculative, guerilla journalism in the past were very limited. By far a greater problem was routine medaciousness and partisan assaults by mainstream media, usually on people or organisations that could not defend themselves as easily as those that Wikileaks attacks.
    Secondly, the Internet and projects like Wikileaks really do change the scope of regulability. I am not saying that you can’t control the Internet, but it’s much, much harder to do so thoroughly. This is good. The challenge is as much to states and other authority to rethink accountability and transparency as it is to Wikileaks to be responsible.
    I think Wikileaks is heading in a more ‘responsible’ direction anyway as it becomes more networked into collaboration with mainstream media. But it’s primary purpose of being a space for information to escape must probably remain outside of any regulatory system. As for Assange and his political mission, that’s another matter. Like Mr Murdoch or even Mark Thompson, he has a political agenda. In his case it is not so far removed from other traditional political investigative journalists, it’s just that the scale and reach of what he does is potentially so much more challenging.
    Those readers interested in what’s new about Wikileaks may care to have a look at this little slideshow I produced:
    Let the Wikileaks debate continue…
    Charlie Beckett

  2. alison says:

    I agree with Charlie that the relationships that WikiLeaks has established with the mass media do act as a form of regulation, at least of the information contained in the leaks. If Zittrain’s FAQ is to be believed, different media outlets are redacting different leaks. This is a different strategy than WikiLeaks took when it initially emerged. Then, it hosted huge volumes of data at the edges of the attention economy, whereas now it acts as an intermediary with strong links to the mass media.

    Perhaps those links are what will create the new transparency and accountability. They are certainly what will allow WikiLeaks to maintain its legitimacy, even as it ushers in a completely transformed era of journalism. The current WikiLeaks does not have to survive the current legal quagmire in order for leaksites to become a permanent fixture. This, as you rightly pointed out, challenges state power. To my mind, it also forces us to think about internet governance in a different way. As the power shifts, the governance debates might have to account for the appearance of actors who don’t fit into any established categories.

    This is an ongoing problem that will have further-reaching consequences than the legal proceedings against Assange.

    Alison Powell

  3. Pingback: Law Review: The United States is none too keen on foreign legal systems – an ‘irritant’ ? « Charon QC

  4. Andrew Scott says:

    One thing highlighted by the libel tourism debate has been just how regulable the Internet is, at least when there is coincidence between legal jurisdiction and location of publisher’s/defendant’s assets. This is what makes the Icelandic Modern Media Initiative, in part motivated by a desire to defend Wikileaks and the like, so interesting. Aside from amending domestic media laws, the IMMI provides for the introduction in Iceland of libel judgment blocking measures (akin to recently enacted US statutes), but also other provisions that seem intended directly to deter legal action in other jurisdictions (eg the criminalisation of persons involved in pursuing or facilitating Norwich Pharmacal or PACE actions brought to secure disclosure of the identity of journalists’ sources). The issues raised sit at the problematic confluence of private interenational law and human rights jurisprudence, and are almost entirely novel. They are inherently legal however.

  5. Damian Tambini says:

    Andrew the IMMI is indeed fascinating. I havent seen any updates from it since the latest Wikileaks chapter: I wonder whether such an initiative will survive the intense diplomatic pressure it will now be under.

    The thing about Wikileaks is that in some ways it does not need IMMI: it has very few assets in most of the jurisdictions it is publishing in, and has the flexibility to move information from server to server. Fundamentally it is likely to be constrained to self regulate simply because its legitimacy – and political support – depends on it acting with a degree of responsibility. Ultimately, you are right of course about ‘regulability’. If Wikileaks fails to effectively self regulate, and generate an open and transparent ethical procedure, I do worry about the potential regulatory response from governments.

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