#04 media
Agnès Callamard

Leaks and WikiLeaks: Impact on Human Rights

What has been the impact of WikiLeaks on human rights? Many observers have raised the spectre of human rights violations as a consequence of the drop-by-drop release of otherwise confidential information. Prominent rights groups called on the whistleblower website to expunge the names of Afghans mentioned in the associated War Diary because of fears that they could be targeted by insurgents. Governments around the world attacked the site as threatening or undermining their national security, effective (i.e. discreet) diplomacy, the work if not lives of their officials abroad and so on. However, the negative impact of WikiLeaks on human rights has been greatly exaggerated and in no way outweighs its positive impact on greater human rights awareness.

Access to information on human rights issues

By releasing official communications, such as the US State Department cables, into the public domain, WikiLeaks disclosed information of vital human rights interest to citizens around the world: information on violations of the laws of war in Afghanistan and Iraq, on human rights abuses and corruption in Kenya, Tunisia and Nigeria and on censorship in China and Russia. A number of military logs in the Afghanistan War Diary and the Baghdad air strike video footage appear to depict attacks on civilians by coalition forces that may amount to violations of the Fourth Geneva Convention. WikiLeaks shed light on the ill treatment of civilians by the coalition forces in Afghanistan and Iraq that should have been the object of full official disclosure. The Baghdad video and much of the material in the Afghanistan War Diary should already have been subject to mandatory disclosure under the access to information laws in the countries of the coalition governments. Public interest should trump secrecy exceptions. As highlighted by the Guardian, within hours of the first cables posted, the newspaper started receiving a steady stream of requests from other editors for information pertaining to their own countries and rulers.

The impact of WikiLeaks was particularly strong in Tunisia. The November 2010 leaks revealed that, contrary to popular assumption, President Ben Ali and his family were not being supported by the superpower. This information spread throughout the country via Facebook and other social media tools, coming to the attention of many Tunisians. "The leaks", I was told during my mission to Tunisia in March, "took our fears away".

As also noted by the Guardian: "Paradoxically the leaked comments by the US ambassador in Tunis, widely read across the region, played a major role in boosting Washington's image on the Arab street."

In the midst of their WikiLeaks-induced angst and concerted effort to muzzle the site and imprison its sources, the US government would be well advised to recall that those very leaks watered the fertile soil of the otherwise celebrated Arab Spring. Tunisian revolutionaries would later readily remind the US that the leaks did wonders for the spirit of the Tunisian people. This is the paradox of WikiLeaks – perceived by such as the US authorities as being a direct threat to (if not an attack against) national security when, in fact, WikiLeaks has served to spread the very values that US governments, including those of Clinton, Bush and Obama, have sought to spread and be identified with: free speech, anti-corruption, transparency, democracy and rule of law.

Today, more than ever before, access to a means of distributing expressed ideas is playing a critical role in struggles for freedom and human rights. Access to electronic media, to the internet, and the cyber activism that this enables, have come to be essential to movements for greater freedom and, perhaps more surprisingly, as essential even to revolution. This is the human rights revelation of the extraordinary cascade of revolutions flowing over the Middle East.

WikiLeaks and harm to individuals

Have the cables and other leaks endangered lives? Much has been said on this topic but little has been proven. To date, no credible information has been made public that connects the release of the information to the harm of any individual. Nonetheless, to the extent that WikiLeaks and similar sites constitute a new public media (and this is my position), they too should follow sound ethical practices that ensure the information they make available is accurate, fairly presented and does not substantially harm other persons. However, WikiLeaks has been criticised for not doing enough to protect or defend its sources. The case for greatest concern is that of Private Bradley Manning. US State Department Spokesman PJ Crowley resigned after coming to the realisation that Manning's ill-treatment in US prisons was ridiculous, counterproductive and stupid.

Possibly in response to the criticism that greeted the first large release of information in July, WikiLeaks officials did seek to strengthen the accuracy, contextualisation and harmlessness of their releases by associating themselves with the best traditional media outlets and their journalists. Indeed, it was the combination and collaboration of electronic and mainstream media that gave strength to the otherwise controversial October 2010 releases. The five newspapers involved in the release of the embassy cables reviewed the documents, placed them in context and ensured that publishing the information would not cause serious harm. This last point is particularly important.

There is no doubt that sites such as WikiLeaks should recognise that the technical protection of the anonymity of its sources can have only limited effectiveness. If the whistleblower is identified through other means, they are likely to face serious consequences for employment, possible legal sanctions and perhaps even physical danger. These risks ought to be better managed than they were in the case of Private Manning. At the same time, it must be highlighted and emphasized that it is not WikiLeaks, similar sites or media in general that are abusing the whistleblowers. It is governments and, in the case of Private Manning, the US government. These authorities could and should choose to behave differently.

As highlighted by ARTICLE 19, (http://www.article19.org/pdfs/press/wikileaks-and-internet-disclosures.pdf) those who provide information to WikiLeaks should not be prosecuted where there is a strong public interest in the information released. Officials who act as whistleblowers by releasing information in the public interest without authorisation should not be prosecuted where that information reveals crimes, abuses, mismanagement or other important issues. Civil servants may legitimately be placed under obligations of secrecy, however, these should be limited by their obligation to serve the overall public good. Anyone disclosing classified information should benefit from a public interest defence whereby, even if disclosure of the information would cause harm to a protected interest, no liability should ensue if the benefits of disclosure outweigh the harm. Instead, there should be strong legal protections and structures to facilitate disclosure.

In fact, what WikiLeaks has exposed is the paucity of some of the laws, policies and practices in place in Western democracies. Countries should adopt comprehensive whistleblowing laws that apply to both the public and private sectors and adhere to them in national security cases. Under secrecy acts, whistleblowers should be protected from prosecution and public interest exemptions should exist for revealing information such as human rights abuses and corruption. Countries should also enact laws protecting journalists from revealing their confidential sources and materials, and such laws should apply to every person who is engaged in the business of making information available to the public.

National security and WikiLeaks

WikiLeaks has also been said to constitute a serious risk to national security. As highlighted by many observers and experts around the world, little of the information contained in the cables was surprising. Indeed much of it was already in the public domain, albeit often in smaller academic circles. None of the documents released was classified as top secret and most of the information contained in the six percent that were classified as secret was also publicly known

On the other hand, the historic abuse of restrictions on freedom of expression and information in the name of national security has been, and remains, one of the most serious obstacles to freedom of expression around the world. The Johannesburg Principles on National Security, Freedom of Expression and Access to Information developed by a group of experts and endorsed by the UN Human Rights Commission, is a proper starting point for evaluating concerns related to national security information in the WikiLeaks debate. Under international law, governments must show that any restrictions on access to information are prescribed by law and necessary in a democratic society to protect a national security interest. Public bodies are the ones obliged to show that disclosure of the information would cause substantial harm. Information should still be disclosed if the benefits of disclosure outweigh such harm. The US rules on secrecy prohibit classifying information about crimes as secret as a way of preventing embarrassment.

The leaks are unlikely to hinder the speech of officials. Studies on the effects of right to information legislation in numerous countries have found little impact on the amount of information that is recorded and no evidence that opinions are more muted following an increase in transparency. In fact, in some cases, the quality of documents has improved with the knowledge that they will become public some day.

Abuse of WikiLeaks

The release of the cables has resulted in a number of abuses perpetrated against WikiLeaks and others associated with the sites.

As reported by ARTICLE 19, some high level officials have called for violence against WikiLeaks staff and whistleblowers. Others have sought to exert huge political pressure on internet companies, to force them to deny provision of services to WikiLeaks without prior authorisation from a court. This has made it more difficult for individuals to access the site, which in turn restricts their right to freedom of information. US government branches, such as the Library of Congress, have prohibited access to the WikiLeaks websites. WikiLeaks websites and discussion forums about the WikiLeaks documents were subsequently blocked in many countries including China, Tunisia and the United Arab Emirates. Financial intermediaries and banks, including PayPal, PostFinance, Visa and MasterCard, also stopped processing donations for WikiLeaks.

In the absence of any legal authority or court ruling finding WikiLeaks' activities to be illegal, this pressure is unlawful and in violation of national constitutions and international laws protecting freedom of expression. Furthermore, under US law, internet intermediaries are not liable for WikiLeaks' activities. The actions of government officials in placing such pressure on companies and companies' compliance by removing access or information without legal authority are characteristic of authoritarian regimes. As highlighted by John Naughton on his blog: "the intolerance of the old order is emerging from the rosy mist in which it has hitherto been obscured... There is a delicious irony in the fact that it is now the so-called liberal democracies that are clamouring to shut WikiLeaks down... What we are hearing from the enraged officialdom of our democracies is mostly the petulant screaming of emperors whose clothes have been shredded by the net."

All efforts to take the site offline have been ultimately counterproductive, with over 1,000 sites now mirroring the WikiLeaks cables. Social media and mainstream media from around the world have rallied, thus further amplifying the impact of the original leaks and website.

WikiLeaks is not the only site on the internet that provides a forum for whistleblowers. Other sites, including Cryptome.com and FAS.org, have provided this important public service for many years. Many more are sure to emerge, whether national or international in scope. These sites will continue to give whistleblowers access to audiences which may have been denied them otherwise. This will be particularly powerful when and if new and old media work together, as they did in the case of WikiLeaks.

WikiLeaks untapped

For human rights activists, these developments constitute huge opportunities: to gain access to information beyond their usual reach, to release public interest information to a wide audience, and to raise awareness and empower the general public to hold authorities accountable. It is what TuniLeaks did for the people of Tunisia. The key challenge though is what to do with the information. The information stemming from WikiLeaks has not been met with an equal level of activism in response. So the real challenge is how to make the most of its bounty. Possible further steps include filing legal charges for human rights abuses, calling for judicial and transparent reviews of authorities' actions and, more generally, using the leaks to inform more appropriate strategies for human rights. The real gift of these sites is as yet untapped.