The Indictment against Assange and Its Implications for the International Freedom of the Press

Introduction

Since 2009, the United States government has initiated 18 prosecutions related to media leaks under the Espionage Act, the most prominent one being the indictment of WikiLeaks founder Julian Assange. These cases highlight an uneasy tension between the legitimate protection of state secrets and the protected freedom of investigative journalism. Criticisms of Assange’s indictment suggest a potential criminalization of routine investigative practices and essential source protection, vital for free journalism. This post evaluates the validity of these critiques in the light of international press freedom and explores whether the indictment sets a dangerous precedent for investigative journalism in general.

The Freedom of the Press in International Law

International press freedom codified in Article 19 of the International Covenant on Civil and Political Rights, affirms the right to ‘seek, receive and impart information […], regardless of frontiers’. This protection extends to diverse platforms, including online self-publishers like WikiLeaks. The right to gather information, a fundamental journalistic step (Dammann v. Switzerland, para. 52), includes both the media’s access to public affairs information and the public’s right to receive information through the media.

The freedom of information and the freedom of expression are closely linked, as evident in the symbiotic relationship between the public’s right to seek information and the role of whistleblowers as crucial sources. Whistleblowers and publishers, protected under the freedom of expression, play a pivotal role in providing accurate and reliable information to the press, fostering transparency, accountability, and informed public discourse. In the ECHR framework, access to information is protected when the information is exclusively available to public authorities, its disclosure serves the public interest, and the individual seeking it is doing so as a public watchdog (Dirk Voorhoof, p. 124). This complements protection of sources, as the press’ ability to provide accurate and reliable information often relies on whistleblowers (Tillack v. Belgium, para. 53).

Legitimate aims for limitations on freedom of expression are laid down in Article 19(3) ICCPR and include safeguarding national security, but any restriction is permissible only if it is necessary and proportionate to the pursued aim.

The term ‘national security’ encompasses a wide array of meanings, allowing states to take measures to protect their core security concerns, but also providing states with flexibility in international obligations. For instance, in the WTO’s system where security interests are commonly invoked, they refer to the protection of a state’s sovereignty, territorial integrity, political independence, and the well-being of its citizens.

To analyze the justification of restricting press freedom for national security in Assange’s indictment, we will employ Gary Ross’s categorization of information (p. 756-757). Ross divides information that a government could withhold from the public into three different categories: First, there are ‘illegitimate state secrets’ that is information that tries to conceal misconduct, incompetence, or illegal activity. Since there is no legitimate interest protecting this type of information, its disclosure is appropriate and should not lead to any criminal consequences. Second, ‘legitimate-but-newsworthy secrets’ include information concerning national security, whose publication would inform public knowledge and debate. Here both interests must be weighed against each other. If the leaked information is of public interest, journalists should not be prosecuted for breaches of confidentiality or the use of illegally obtained documents (see also Stoll v. Switzerland, paras. 110, 118-124; Guja v. Moldova, para. 72; Observer and Guardian v. the United Kingdom, para. 69). However, if the leaked documents do not contribute to public debate, proportionate interference with the freedom of expression is justified (Leempoel and S.A. Ciné Revue v. Belgium, para. 73). The third category are ‘legitimate-but-not-newsworthy secrets’, information that is withheld to protect national security and whose publication is of little to no interest to the public. Information of this category is not protected under the freedom of expression as its threat to national security supersedes the societal imperative of safeguarding freedom of expression.

The Indictment against Julian Assange

When analyzing whether Assange’s indictment endangers standard journalistic practices and thereby the freedom of the press itself, we must evaluate the threat that both the publications themselves, as well as their obtainment, pose to national security.

Publication of Endangering Information

The main part of the indictment alleges that Assange obtained and disclosed classified national defense information, with an emphasis on the divulgence of confidential informant identities (USA v. Assange, paras. 36-41). The revelation of informant identities constitutes a significant hazard to individuals’ safety and provides minimal, if any, discernible benefit to the public. Applying Ross’ definition suggests that such publications do not merit protection under the international protection of press freedom. However, there exists a distinction for content that reveals ‘legitimate-but-newsworthy secrets’ without compromising civilian safety, potentially qualifying for protection under international press freedom standards. In addressing these cases, courts are tasked with delicately balancing the public interest against the potential risks to national security, determining exemptions from criminal liability.

Requesting Information from a Source

The indictment includes charges that aim to criminalize Assange’s methods for obtaining and processing information, notably his encouragement of further data acquisition. Assange reportedly urged whistleblower Chelsea Manning to procure more documents related to military activities in Afghanistan, Iraq, Iran, and detainee abuses in Guantánamo Bay (ibid., paras. 10-12). Manning, a US Army soldier, had exclusive access to classified military documents. Although withholding such information can be justified to protect national security, this rationale falls short when the public interest in disclosure outweighs potential harm to national security, a stance supported by the Joint Declaration by UN, OSCE, OAS, and ACHPR Special Rapporteurs on Freedom of Expression (p. 42). Therefore, the acquisition of information, in this context, should not be criminalized if it serves the public interest.

Under Voorhoof’s criteria above, this case corresponds to the idea of a public watchdog seeking monopolized information, which raises the crucial issue of whether its disclosure serves the public interest. According to the ECtHR’s jurisprudence, the importance of exposing misconduct within national security or military practices outweighs maintaining public trust in these institutions (Bucur and Toma v. Romania, para. 115; Görmüş and Others v. Turkey, para. 63). Yet, the potential harm to national security versus public interest in the disclosed information necessitates case-by-case evaluation. Considering Manning was already penalized for her actions, which directly threatened national security, the necessity of Assange’s indictment for encouraging document acquisition is debatable, questioning the direct role of encouragement in obtaining classified information. It must be noted that practices of encouraging sources or requesting specific data are standard in journalism (Greenwald and Lee). Therefore, should Assange be convicted, a detailed justification and a direct link between his encouragement and the security threat must be established, to avoid criminalizing journalistic activities (cf HRC GC 34, para. 35).

Protection of a Source

As outlined by the ECtHR in Goodwin v. United Kingdom, any interference on source protection can only be justified if it is necessary in the public interest and is proportionate, as a lack of source protection has a chilling effect on the willingness of individuals to come forward with matters of public interest. Restrictions on electronic or online information dissemination systems, as well as systems to support such communication are only permissible if they are content-specific and compatible with ICCPR’s Article 19(3) (HRC GC 34, para. 43).

Aiming to conceal Manning’s identity, Manning and Assange tried to hack into another user’s account to access a government network (USA v. Assange, paras. 15-18). While the protection of a source’s identity remains essential to investigative journalism (Tillack v. Belgium, para. 53), the use of another user’s account could have incriminated another person. False accusation is a criminal offence in the US and journalists are not exempted from their duty to obey ordinary criminal law (Stoll v. Switzerland, para. 102). While Assange may bear criminal liability for the endeavor to gain unauthorized access to a government computer and the attempt of false accusation, it is paramount to distinguish this action from his use of secure communication tools and practices aimed at safeguarding sources. In contrast, the indictment  extends to this criminalization of source protection, asserting that ‘it was part of the conspiracy that Assange and Manning took measures to conceal Manning as the source of the disclosure of classified records to WikiLeaks, including by removing usernames from the disclosed information’ (USA v. Assange, p. 36).

Conclusion

The publication of legitimate state secrets that endanger civilians without public relevance and the attempt to hack another user’s account, potentially resulting in a false accusation of obtaining and disclosing classified information, warrant serious consideration and criminal investigation. While WikiLeaks themselves did not protect the sources of the US military in Afghanistan, the necessity for source protection remains a protected industry standard of investigative journalists (Tillack v. Belgium, para. 53) and must be considered when evaluating the charges against Assange. The charge of encouragement clashes with international law by potentially criminalizing standard journalistic methods. As stated by Parteli, we have arrived in an era where media statements transcend national borders. Prosecuting Assange – an Australian publishing US secrets abroad – threatens to reshape global investigative journalism norms. Without distinguishing between criminality, source protection, and journalistic activity, Assange’s indictment poses a risk to press freedom worldwide.

The “Bofaxe” series appears as part of a collaboration between the IFHV and Völkerrechtsblog.