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WikiLeaks: Why no laws were broken

Feature Articles

Cite as: Cite as: March 2012 86 (03) LIJ, p.30

In November 2010, WikiLeaks published US government documents.  The Australian Federal Police told the Australian government that no investigation was justified. They were right.

By Professor Margaret Jackson

During 2010, the WikiLeaks website released thousands of US embassy, military and government documents, cables and videos. In November, the website published 251,287 US State Department documents, releasing them to media organisations at the same time.1 The documents were correspondence between the US State Department and its diplomatic missions around the world. Apparently 1442 documents mentioned Australia and 933 documents were sent by the US embassy in Canberra.

On 2 December, Prime Minister Julia Gillard condemned the publication by WikiLeaks and described it as “an illegal thing to do”.2 When pressed by the media to explain which Australian laws had been broken, Ms Gillard could not do so.3

The then federal Attorney-General, Robert McClelland, referred the leaked cables to the Australian Federal Police (AFP), and on 17 December the AFP issued a statement that no investigation into the matter was justified because it had “not established the existence of any criminal offences where Australia would have jurisdiction”.4

This article examines the laws relating to the unauthorised publication of information in Australia and discusses why the WikiLeaks publications did not breach them.

THE LEAKED DOCUMENTS

It is necessary to understand how the cables or documents released were classified and whether they were confidential because the law applies to confidential information in a specific way. Apparently, of the 933 cables from the US embassy in Canberra, 470 were marked “unclassified”, 385 were marked “confidential” and 79 were marked “secret”.5 The US government classification system is established under Executive Order 13526.6 Information is assessed according to its sensitivity and its potential to damage national security. There are three levels of classification for sensitive information – confidential, secret, and top secret. If the information doesn’t carry one of these labels it is “unclassified”.7

The cables were mainly a mixture of reports of meetings with government officials and politicians and analysis and comments on events and people in Australia. They were sent from Canberra to the State Department using the Secret Internet Protocol Router Network, or SIPRNet.8 SIPRNet is the worldwide US military internet system, separate from the ordinary civilian internet, and run by the Department of Defense in Washington. Access to documents on SIPRNet was open to State Department and US military officials with a security clearance up to the “secret” level, about three million people.9 Allegedly, the documents were leaked to WikiLeaks by a US army intelligence analyst based in Baghdad.10

What is clear is that the documents belonged to the US government and not to any individual or organisation in Australia, and that they were copied outside Australia and given to WikiLeaks. As well as publishing the leaked documents, WikiLeaks gave copies to the New York Times, Der Spiegel, The Guardian, Le Monde and El Pais, which also published the documents. Fairfax Media subsequently was given access to and then copies of the documents relating to Australia and the Asia-Pacific and published them in Australia.11

AUSTRALIAN LAW

In this instance, information has been disclosed without authority by a third party. Both the unauthorised disclosure and the publication, with one exception, took place outside Australia.

Criminal law

Both the Prime Minister and the Attorney-General said the publication of the cables by WikiLeaks was an illegal act.12 The Attorney-General referred the leaked cables to the AFP, which said no criminal offence had been committed in Australia. It is presumed that the possible offences that the AFP would have considered were communication of official secrets (s79), treachery (s24AA) and disclosure of information by commonwealth officers (s70) in the Crimes Act 1914 (Cth) and espionage (s91.1), treason (s80.1) and sedition (s80.2) in the Criminal Code Act 1995 (Cth). It is hard to see that other legislation, such as the Cybercrime Act 2001 (Cth), could be relevant.

As a result of the September 11, 2001 attacks, Australia introduced amendments to the sedition, treason, and espionage offences in the Criminal Code Act 1995 (Cth). The first two offences relate to attempting to overthrow the government, whether by one’s own direct actions or by urging others to do so, and to aiding an enemy of Australia. The changes focused on terrorist activities and terrorist organisations and did not include the release of information using the internet. Section 80.2, sedition, of the Criminal Code Act 1995 (Cth) covers urging (1) the overthrow of the Constitution or government; (2) interference in parliamentary elections; (3) violence in the community; (4) a person to assist the enemy; and (5) a person to assist those engaged in armed hostilities.

Section 91.1 is a more relevant section in that a person making available to another country information concerning the Commonwealth’s security or defence, or information concerning the security or defence of another country (being information that the person acquired either directly or indirectly from the Commonwealth), is guilty of espionage. However, the information that was published on WikiLeaks, although available to all countries, could not be said to have been published with the intent to prejudice Australian security, but instead in the public interest.

There are specific offences in the Crimes Act covering the release of government secrets. Section 70 makes it an offence for a commonwealth officer to release government information. The definition of a commonwealth officer does not include members of Parliament. Apparently some government officers were the source of information that was contained in the cables, as were MPs and ministers, and so this offence could have been explored, depending on the information disclosed.

Section 79 deals with official secrets, which is generally defined in sub-s1 as any category of information which a person should know is to be treated as a secret because of its nature or the circumstances under which they gained knowledge of it. Section 79(5) makes it an offence to receive such information knowing it was the result of espionage and s79(6) is a lesser offence if the recipient knows the information is an official secret. None of the information disclosed to the US officers who then included it in their cables appeared to be Australian government official secrets.

As the cables did not contain official Australian secrets and were not disclosed with intent to prejudice Australian security, the criminal provisions relating to espionage, treason and disclosure of official secrets could not apply.

Civil law

As WikiLeaks has not committed a criminal offence, the question then becomes: has any non-criminal offence occurred? The information disclosed in the cables included comments by Australian officials and politicians, and comments by US officials on Australian government policy.

Protection of information falls under several areas of law. The focus of this discussion is on how a government or organisation can legally stop disclosure of information, rather than on areas of law which permit others to use the information with the consent of the originator of the information.

Equity (the breach of confidence action) and contract are the main areas of law which provide measures by which an organisation can protect its confidential information. The area of law may depend on the type of information to be protected and the circumstances of its possible access, use or disclosure. Contract law does not apply to the WikiLeaks situation because there is no contract between the politicians and officials who have been quoted in the cables and the US officials to whom they spoke.

However, there would obviously have been, in some cases, an expectation that the information, primarily comments and observations, being communicated to US officials was confidential and was being imparted in confidence. Certainly 464 cables were considered to be confidential or secret by their authors.

The action for breach of confidence allows one party who has imparted information in confidence to another to obtain relief if the other party without authority either uses the information or imparts it to a third party. The action may be used to protect confidential information of any type, not just business information.13 It exists outside any contractual relationship which may also impose an obligation of confidence either expressly or by implication.14

The breach of confidence action is designed to protect the relationship of confidence between the confider and the confidee, rather than to protect the information itself. It can be used to stop a person from breaking a promise or breaching a duty, but does not confer a right to keep information private. Protection of the information itself is an outcome, but is not the main object of the action. A confider who fears disclosure by the confidee would normally be seeking return of the information or an injunction to stop disclosure. The information was confided in most cases to US officials in Canberra and so individuals whose comments were disclosed because of the security failures of the US government may have looked to the US embassy staff in Canberra for a remedy except for the existence of diplomatic and consular immunity.15

A third party who receives confidential information in breach of an obligation of confidence will only be placed under the same obligation of confidence as the person to whom it was originally confided if the third party is aware, or subsequently becomes aware, of it having been imparted under a duty of confidentiality. The third party in the WikiLeaks situation, the person who disclosed the documents to the website, is a person with no link to Australia, but who was aware of the confidential nature of the documents. WikiLeaks, which disclosed it to the public via the internet, was also aware of this.

Before 2001, it appeared likely but was not definite that the breach of confidence action would apply in Australia if confidential information were obtained illegally or improperly from the original owner, without the existence of a confidential relationship.16

In 2001, in Australian Broadcasting Commission Limited v Lenah Game Meats Pty Ltd,17 dicta by Gleeson CJ, Gummow and Hayne JJ stated that the breach of confidence action would provide a remedy if the information surreptitiously or improperly obtained could be regarded as confidential. However, no remedy can be provided if the information is not confidential.

A third party who proposes publishing confidential information which they know is confidential, such as Fairfax Media, can be stopped if the information is not already in the public domain. With our case, the cables relating to Australia were not on the WikiLeaks site before Fairfax published them and so an injunction might have been sought had the individuals named in the cables known about it.

The main defence to a breach of confidence action is that the disclosure has been, or will be, in the public interest. The public interest defence has been viewed as being concerned not so much with the activities of the plaintiff as with the fact that some harm to the public interest may arise if no disclosure occurs.18

While there is no doubt that a defence of public interest is an acceptable one in Australia,19 the scope of the operation of the defence is still not clear. Generally, the public interest defence has gone beyond disclosure only of iniquity or serious misdeeds, to public interest in knowing the truth about something,20 although this approach has been criticised.21

It appears likely that a court will uphold a defence of public interest, particularly if misconduct on the part of the person seeking to keep the information confidential is involved22 and where the disclosure was made to the proper authorities such as the police or independent ombudsman.23 There appear to be grounds also for justifying a widespread disclosure to the public, through the media or by publication of a book, if the information in question affects the community as a whole.24

The situation where a person who does not have clean hands seeks to rely on a public interest defence is less clear.25 The defence of public interest was raised in ABC v Lenah Game Meats, with an argument based on the right to freedom of information. It may be difficult to prove, however, if the unauthorised disclosure is to the media and not an appropriate person, such as the police.26

WHISTLEBLOWERS

The defence arises the most in government-held information. To clarify the situation for government officials who may release confidential information in breach of their confidentiality obligations imposed by statute, legislation has been enacted in most jurisdictions to protect public sector whistleblowers. The states and territories have enacted such legislation.27 The Commonwealth has not, although s16 of the Public Service Act 1999 does provide some protection for whistleblowers. So while legislation at the commonwealth, state and territory level confers protection against the disclosure of information by government employees outside the course of their employment, this is not the situation of the WikiLeaks cables as the alleged discloser is a US citizen. As well, government officers are prohibited in many cases from disclosing confidential information by many secrecy and confidentiality clauses in statutes. Again, these are not relevant here.

The unauthorised disclosure of government information is treated differently from that of private individuals. Mason CJ in Commonwealth v John Fairfax & Sons Ltd & Ors drew a distinction between the release of sensitive information that would prejudice national security and relations with foreign countries, and information that exposes government actions to public discussion. He said that “the only vice of that information is that it enables the public to discuss, review and criticise government action”.28

CONCLUSION

In the WikiLeaks situation, the information has been disclosed without authority by a third party. In the case of such unauthorised disclosure of information, the equitable breach of confidence action is still the most appropriate to consider. In particular, where a person has acted in an unconscionable way, equity is likely to act to restrict disclosure of surreptitiously obtained confidential information without requiring that a confidential relationship exists between the original owner of the information and the person who has acted improperly as long as the information is confidential.

The breach of confidence action might have provided the government officials concerned with a way to prevent the disclosure of confidential documents had the possible discloser been known and found in Australia. This was not the case with WikiLeaks and no action was possible.




Professor MARGARET JACKSON is the Professor of Computer Law at RMIT University and head of the Graduate School of Business and Law. She is the co-author with Marita Shelly of Electronic Information and the Law (Thomson Reuters (Professional), 2012).

1. “Australian Federal Police to investigate WikiLeaks ‘Cablegate’”, Herald Sun, 29 November 2010: http://tinyurl.com/87dmlfu (accessed 23 January 2012).

2. AAP, “WikiLeaks acting illegally, says Gillard”, Sydney Morning Herald, 2 December 2010: http://tinyurl.com/25a24tv (accessed 23 January 2012).

3. AAP, “PM can’t say what law WikiLeaks has broken”, Sydney Morning Herald, 7 December 2010: http://tinyurl.com/2vuvvex (accessed 23 January 2012).

4. AFP, Media Statement: Finalisation of WikiLeaks referral: http://tinyurl.com/8xag2np (accessed 23 January 2012).

5. Note 1 above.

6. Information Security Oversight Office of the National Archives, “Executive Order 13526”: www.archives.gov/isoo/policy-documents (accessed 23 January 2012).

7. Note 6 above.

8. Julian Borger and David Leigh, “SIPRNet: where America stores its secret cables”, The Guardian, 28 November 2010: http://tinyurl.com/6srehpv (accessed 23 January 2012).

9. Note 8 above.

10. David Leigh, “How 250,000 US embassy cables were leaked”, The Guardian, 28 November 2010: http://tinyurl.com/2b8l252 (accessed 23 January 2012).

11. Alan Kohler, “Will WikiLeaks drown old media?” Business Spectator, 13 December 2010: http://tinyurl.com/86anx8t (accessed 23 January 2012).

12. AAP, note 3 above.

13. Duchess of Argyll v Duke of Argyll [1967] Ch 302; Stephens v Avery (1988) 11 IPR 439.

14. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203.

15. Department of Foreign Affairs, Protocol Guidelines, Chapter 5, Appendix 21: www.dfat.gov.au/protocol/protocol_guidelines/A21.pdf, at 4 February 2011.

16. Franklin v Giddins [1978] Qd R 72.

17. (2001) 185 ALR 1.

18. Staniforth Ricketson and Christopher Creswell, The Law of Intellectual Property: Copyright, designs & confidential information (2nd edn), 2001, Lawbook Co, 26.30.

19. See Castrol Australia Pty Ltd v EmTech Associates Pty Ltd (1980) 33 ALR 31; A-G (UK) v Heinemann Publishers Australia Pty Ltd and Anor (1987) 75 ALR 353; Westpac Banking Corporation v John Fairfax & Sons (1991) 19 IPR 513; AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464, [173]–[191] (Campbell J).

20. Woodward v Hutchins (1977) 1 WLR 760; Allied Mills Industries Pty Ltd v Trade Practices Commission (1981) 55 FLR 125.

21. Lion Laboratories v Evans (1985) QB 526; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FLR 434.

22. Robert Dean, The Law of Trade Secrets and Personal Secrets (2nd edn), 2002, Lawbook Co, para 7.60.

23. X Pte Ltd v CDE [1992] 2 Singapore LR 996.

24. Jason Pizer, “Confidence action: are the lights about to change?” [1994] 20 Monash University Law Review 67, 80. See, for example, Church of Scientology v Kaufman [1973] RPC 234, Lion Laboratories Ltd v Evans [1985] QB 526, and Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513.

25. See Robert Dean, note 22 above, generally, chapter 7.

26. Initial Service Pty Ltd v Putterill [1968] 1 QB 396.

27. Public Service Act 1999 (Cth), s16; Public Interest Disclosure Act 1994 (ACT); Protected Disclosures Act 1994 (NSW); Whistleblowers Protection Act 1994 (Qld); Whistleblowers Protection Act 1993 (SA); Whistleblowers Protection Act 2001 (Vic); Public Interest Disclosure Act 2003 (WA); Public Interest Disclosures Act 2002 (Tas).

28. (1980) 147 CLR 39 at 52.

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