Wikileaks and Their Defamation Problems

In the last day or two, a ‘defamation list’ full of things that Wikileaks has claimed to be defamatory has been released, but this document (if a pastebin can be called such) raises far more questions than it answers, and is peppered with legal inaccuracies and blunders. The initial claims from Reuters said that on January 6th, Wikileaks sent out a list of 140 things that reporters shouldn’t say about its founder, because they’re “false and defamatory”.

I actually have some experience with UK defamation law, having been accused of it back in 2012 by the UK Intellectual Property office, a claim they later admitted was false. It’s become someone of a ‘thing’ to scream “defamation” when someone says something about you you don’t like, even (or especially) when it’s factual. From Shiva Ayyadurai protecting his fake claim of inventing email, to Donald Trump upset that his claims of being a Billionaire were debunked, defamation suits have been the staple of those whose ego overrules their good judgement.

Defamation is an oft misused and misunderstood topic. It’s not (despite what many think) saying something someone doesn’t like, or that may be inaccurate, as it doesn’t matter how many millions of times it’s been said, it also doesn’t include hyperbole. Instead defamation is the communication of deliberately false statements purported to be factual with malicious intent to cause injury.

So, it doesn’t include opinions, it doesn’t include factual statements, and it doesn’t include something that a reasonable person would believe with access to the same facts. That’s going to be a problem here for Wikileaks, as a lot of the things they claim are “false and defamatory” are either factually true, opinions, not about them (so they can’t claim it’s defamatory) or reasonably believable given facts in the public sphere.

Not that it’s the first time they’ve managed to shoot themselves in the foot themselves when it came to legal issues. The initial UK extradition hearingwas a mess, with people claiming things based on what Wikileaks lawyers had told them, only for them to be recanted when the judges pointed to evidence that contradicted what they’d been told.

The initial list of claimed statements sent to Reuters and elsewhere can be seen below, but after they leaked — despite an official (albeit useless) “CONFIDENTIAL LEGAL COMMUNICATION NOT FOR PUBLICATION”claim at the start — Wikileaks put out a new ‘public’ version of the list on a pastebin, although the 140 items had now been whittled down to 97 (apparently, 43 defamatory things weren’t all that defamatory after all…) but that disclaimer is still there. Sorry, but if you freely send it out, and then publish it publicly, it’s certainly not a confidential communication. And if you send me or someone else a copy of a document, you can’t demand they not publish it unless you’ve got prior agreement. This header will cause problems for Wikileaks, as will become clear later. However, the list itself has more than its fair share of problems.

Let’s start with some of the inaccurate claims made in the document. Right at the start,

“It is false and defamatory to suggest that Julian Assange is, or has ever been, charged with an offence by the United Kingdom or Sweden”

Not true (kinda). It uses the word ‘charged’ here as if it were the same thing in Sweden and the UK. It’s not. What’s more this was a key aspect of Assange’s High Court challenge in 2011 (because if he hadn’t been ‘charged’, then the extradition request would be invalid), and one that was easily dismissed by the judges.

“Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement of criminal proceedings were to be viewed as dependent on whether a person had been charged, it would be to look at Swedish procedure through the narrowest of common law eyes. Looking at it through cosmopolitan eyes on this basis, criminal proceedings have commenced against Mr Assange.
In our view therefore, Mr Assange fails on the facts on this issue
– High Court verdict, Paragraphs 153–154

Basically, if you want to use “Charged” in the English sense, then yes he was ‘charged’ in Sweden. Whats more, he would indeed be charged with bail violations should he leave the embassy, the only thing preventing that is that he is not in a position to be taken into custody to have that action legally performed. It’s not like they can wave a wand and say Criminalo Chargio and he be charged, so saying he hasn’t been charged because he has avoided being officially notified of being charged, is splitting hairs to avoid the reality of the situation.

now, if you want to use ‘Charged’ in the Swedish definition, he hasn’t been… YET. That’s because in Sweden, the charging comes right before court appearances, and after arrests. When you flee the country to avoid that, it’s natural that you’ve not been charged. However, prosecutors have made it clear that should he leave the embassy before the statute of limitations expires, they will continue to attempt to charge him.

Another cracker of a lie is

“It is false and defamatory to suggest that Julian Assange has ever worked for, or has ever been employed by “Russia Today”, “RT” or the Russian government.”

I mean, sure, that’s true, if you completely forgot about “World Tomorrow” (otherwise known as The Julian Assange Show, available at https://assange.rt.com), a TV show he wrote and hosted, produced by RT, in 2012 that lasted for 12 episodes. Last time I checked, when you write and host a show for a network, you’re working for them.

There’s also a requirement for defamation, that it be about you. You can’t claim a statement is defamatory about a separate entity (“That’s mean to xyz”). If that entity finds it injurious, they can make their own claim. So

It is false and defamatory to suggest that the Democratic National Committee has claimed that Julian Assange directed, conspired, or colluded to hack the Democratic National Committee or John Podesta [in fact, the DNC makes no such claim: https://www.courthousenews.com/wp-content/uploads/2018/12/WikiLeaksDNC.pdf].

is making claims about defaming the DNC. It’s entirely down to the DNC if they want to pursue that as a line of defamation, not wikileaks.

Another exemption is “Absolute privilege”, which says that fair reporting on court proceedings is absolutely not defamation under any circumstances. So, this is a problem for this claim.

It is false and defamatory to suggest that Julian Assange is a “hacker”

That’s because in 1996, Julian Assange pled guilty to 25 charges of hacking in Australia. That means that calling him a hacker is a fair and accurate report of that court proceeding, and thus under section 14 of the Defamation Act 1996, is absolutely immune from defamation proceedings.

Then there’s three together that make for a cracking narrative, and indeed form part of the narrative of his embassy stay. In fact, taken as a whole, this list is nothing more than an attempt to threaten news organisations that they should report stories about them only as part of an approved narrative, or else they would face a lawsuit.

It is false and defamatory to suggest that there is any evidence that the U.S. charges against Julian Assange relate to the Mueller investigation.’

It is false and defamatory to deny that Julian Assange has been formally investigated since 2010 and charged by the U.S. federal government over his publishing work [it is defamatory because such a claim falsely imputes that Mr. Assange’s asylum is a sham and that he is a liar, see https://defend.wikileaks.org/].

It is false and defamatory to suggest that such U.S. charges have not been confirmed [in fact, they have, most recently by Associated Press (AP) and the Washington Post in November 2018].

For a start, there’s no evidence of any US charges in existence. What the AP and Post reported in November 2018 is that due to a copy-paste error, there were some references to a possible sealed indictment. However, if there is one, it almost certainly relates to the Mueller investigation, and not the 2010 Manning investigation. First because it’d be very hard to justify sealing an indictment relating to Manning, since Assange has publicly stated he felt there is one (as they’re aware of the possibility, the benefit of sealing it to prevent them knowing about it and hiding evidence is gone), second the prosecutor in question didn’t join the department until 2015, long after any new evidence has come about. This is not the case for the Mueller investigation, especially as it relates to contacts between Assange/Wikileaks and Roger Stone, and other campaign irregularities under scrutiny.

It also forgets that Grand juries have a standard maximum length of 18 months, as was highlighted when Chief Judge Beryl Howell just extended the Mueller Grand Jury on January 4th. Is he saying this Grand Jury has been around 8 years, getting secretly and quietly extended, and 7 years after its last activity, it just suddenly produced this indictment? That’s not just unlikely, it strains incredulity.

In fact, every single one of the 140 original claims either claims defamation for ‘suggesting’ something (127 times) or to deny something (13 times).

This becomes a problem as in the list of defenses available under the 2013 Defamation Act, one is honest opinions

Honest opinion

(1)It is a defence to an action for defamation for the defendant to show that the following conditions are met.

(2)The first condition is that the statement complained of was a statement of opinion.

(3)The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.

(4)The third condition is that an honest person could have held the opinion on the basis of — 
(a)any fact which existed at the time the statement complained of was published;
(b)anything asserted to be a fact in a privileged statement published before the statement complained of.

Also damaging any case that Wikileaks may try and make is the defense on matters of public interest, of which Assange and his actions fall.

Publication on matter of public interest

(1)It is a defence to an action for defamation for the defendant to show that — 
(a)the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b)the defendant reasonably believed that publishing the statement complained of was in the public interest.

(2)Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.

(3)If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

(4)In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.

(5)For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.

And with this, pretty much any claim in this list by Wikileaks is going to fail, as they won’t be defamatory, and that’s potentially a problem for them.

One of the other aspects of defamation law is “Slander affecting official, professional or business reputation.” Basically, if you issue words that are calculated to disparage a trade, business, or profession (say “journalists”, or “The Guardian”) by issuing words calculated to disparage them, that’s defamation. All those claims (140 or 97, depending on the version), each is claiming a disparaging act, and doing so deliberately, in an attempt to counter and shape a narrative, and undermine the credibility of a business. And this is where we come back to that all-caps disclaimer at the start, the “CONFIDENTIAL LEGAL COMMUNICATION” which implies a factual authority. Add in the attempts to source (even if they do just come back to themselves), and you’ve got Wikileaks making dozens of defamatory statements, constructing them specifically to avoid being taken as opinion, and doing so while trying to claim it’s being defamed.

It’s actually quite incredible how badly the legal team at Wikileaks actually is, given this and their other massive blunders, it’s almost as if they don’t want to win…

Original 140 point list sent out to news agencies 6 January 2019

Revised 97-point list released by Wikileaks 7 January 2019