NATIONAL SECURITY AND FREEDOM OF EXPRESION AFTER WIKILEAKS

DAMIAN TAMBINILSE MEDIA POLICY PROJECT@DAMIANTAMBINI@LSEMEDIAPOLICY

Freedom of Expression

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

European Convention on Human Rights Article 10

International Covenant on Civil and Political Rights• Article 19• 1. Everyone shall have the right to hold opinions without

interference. • 2. Everyone shall have the right to freedom of expression; this

right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

• 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

• (a) For respect of the rights or reputations of others; • (b) For the protection of national security or of public order

(ordre public), or of public health or morals.

http://mirror.wikileaks.info/

• “WikiLeaks is a non-profit media organization dedicated to bringing important news and information to the public. We provide an innovative, secure and anonymous way for independent sources around the world to leak information to our journalists. We publish material of ethical, political and historical significance while keeping the identity of our sources anonymous, thus providing a universal way for the revealing of suppressed and censored injustices.”

truth

regulators

institutions

The market owners

editors

readers

source

subject

News ValuesEthical codes

Responsible for what and whom?

To what extent are privileges enjoyed?

The Phases

1. Automatic publication/ wiki structure with user-editing 2006-2007

2. Strategic/ idiosyncratic editorial selection 2007-2010

3. Editorial selection and redaction based on public interest, with limited ethical application and media partnership 2010-

3.a. Global Media Partnership

4. Irresponsible Dumping? August 2011-

5. Post the cables. Post Assange?

Some difficult cases for Wikileaks on the Diplomatic cables

• Revealing sources of US intelligence may put them at risk

• Revealing key strategic information about ‘national security’ might put lives at risk

National Security• List of Critical Foreign Dependencies abroad:

The ‘Terrorist Hit list’• Secret forces deployment in

Pakistan

Negotiations over redactions

Johannesburg Principles on national security and freedom of expression (1996)• “any restriction on expression …that a government seeks to

justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest.”

• “In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions or to entrench a particular ideology or suppress industrial unrest”

• The Johannesburg Principles on National Security, Freedom of Expression and Access to Information. The ARTICLE 19 International Standards Series. London 1996

• “Appealing to national traditions of fair play in the conduct of news reporting misunderstands what Wikileaks is about: the release of information without regard for national interest. In media history up to now, the press is free to report on what the powerful wish to keep secret because the laws of a given nation protect it. But Wikileaks is able to report on what the powerful wish to keep secret because the logic of the Internet permits it.” (Clay Shirky, 2010).

Wikileaks: A Structural Shift?

• Escapes Jurisdiction ? Globalisation

• Protection of sources – by software code (encryption) not ethical code. Technology

• Understanding Wikileaks as a model, not an institution

Legitimate National Security Interest

• “..to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use of threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government” (Johannesburg Principles 2a).

Justification of Publication?Public Interest vs Interest in restriction?

Information that may legitimately be withheld

• Information can be withheld if:

1.If such restrictions comply with these Principles

2.If the information is held by a public authority and

3.If the information falls within given categories, eg:

-ongoing defence plans

-information about specific measures to safeguard the territory of the state, critical infrastructure, or critical national institutions… the effectiveness of which depend on secrecy. (Principle 9).

-information pertaining to, or derived from, the operations, sources and methods of intelligence services, insofar as they concern national security matters

Information where there is a presumption in favour of publication

• Including illegal surveillance

Conclusions• Global media – global ethics?

• How long will evasion of jurisdiction be permitted to continue?

• Can a ‘post national’ code for (1) the public interest in disclosure and (2) national security be developed?