Leak house

When the first WikiLeaks logs arrived in The Guardian's newsroom, in-house counsel Gill Phillips' heart sank. As a media veteran with The Sunday Times and the BBC on her CV, she'd done this sort of work plenty of times before. But the logs, she says, were 'one hundred times' any of that.

The data came in two parts. The logs were chronological, bullet point accounts of military operations. The cables were verbatim correspondence between officials. Together they threw up the whole range of media law headaches, from possible breaches of the Official Secrets Act to privacy, defamation and even copyright. Whether or not government claims were ultimately upheld by the courts, an attempt to injunct the newspaper could scupper the bigger effort to put WikiLeaks material in the wider public domain, an outcome which could ultimately restrict the scope of press freedom.

Phillips quickly found herself seeking advice from American lawyers on the reach of the Espionage Act, as well as from counsel here in Britain over the Official Secrets Act. What came back was that, irrespective of the legal position, it was WikiLeaks' founder Julian Assange and the source, US army intelligence analyst Bradley Manning, who would be the prime targets, rather than the media.

'The trend is that you prosecute the leaker, not the mouthpiece, and so at best I felt reasonably reassured that these were low risk,' says Phillips. Indeed the three newspapers involved, The Guardian, The New York Times and Der Spiegel, tactically agreed to run stories together to make any prosecution more difficult.

'Legally the logs were much easier than the cables,' she says, having concluded that the sole issue was one of privacy. Any realistic possibility of a challenge under the Official Secrets Act was ruled out '“ 'none of this had been leaked by anybody having anything to do with the UK government'. And, while the information was confidential, the newspaper would have a strong public interest defence.

'By the time we got close to publication, my evaluation of the risk was that it was fairly low. The practical issue was to not get people shot; foreign correspondents past and present got involved and we '“ unlike WikiLeaks itself '“ had the resources, knowledge and technical skills to get this material published safely and responsibly,' she says.

'If there was any doubt over somebody's safety or we had a request to remove a name '“ particularly the bit players who would not add much to a story and whose position could be compromised locally '“ then these names would be removed,' she adds.

Question of confidence

Despite her confidence, there remained lingering concerns 'about the potential for it to come and hit us at the last minute'. On the weekend of the publication of the logs, Phillips still had a couple of barristers on standby in case of a last-minute injunction from the Home Office. But, as in many other instances during the WikiLeaks saga, The New York Times had approached the State Department before running its own stories, and Phillips remembers thinking 'if anything is going to happen it's got to happen now' '“ in the end, nothing happened.

It was the cables that raised a more intriguing set of issues. Even though some were written in a professional capacity, Phillips considered they could be regarded as creative work potentially protected by copyright.

'Some are beautifully written and structured,' she says. 'They're an example in essay writing.' With ambassadors and other officials putting 'creative endeavour' into the gossipy missives, could a raft of claims from dignitaries be on the cards?

Here again, the question reverted to one of confidence. Stories could be written on the basis of the cables, even if the cables themselves weren't reproduced, and, on balance, the risk of litigation was minimal.

Another issue with the cables was the potential for defamation claims. Despite the authors' status, these records of conversations would be unlikely to be regarded as hard evidence. One major practical problem was that 'the chances of the US ambassador coming to testify and confirm the contents of cables in court '“ collaboratively or otherwise '“ were nill', Phillips says.

So the paper had two choices: either verify the information independently or do a Reynolds notification, which would alert the people who were the object of the cable of what was about to be published. In the end the paper decided to run non-UK stories based on the cables, creating momentum around the new information, while it approached people in the UK about allegations the cables contained '“ and most stories were confirmed.

On top of this, unlike the logs, the cables also contained material originating from the UK. With government officials and civil servants reporting conversations they'd had with US officials,a greater potential need for scrutiny of the Official Secrets Act was required.

'I was worried the government would try to get a blanket injunction, and because it was the UK we may have been more vulnerable,' she confides.

The criterion under section 6 of the Act was whether publication is damaging to the UK and its international relations. After lengthy discussions, the opinion was that publication would merely be 'embarrassing' rather than 'damaging'. Each story would need to be examined closely but, on paper at least, Phillips felt confident the newspaper could stand its ground.

As the first chapter of the WikiLeaks stories closes, Phillips admits she is relieved at what has been achieved '“ avoiding pre-publication injunctions, breach of privacy claims and copyright infringement claims '“ but is open about the fact that her own weighing of the risk evolved as the material was coming through and discussions with journalists made her reassess the legal position.

New world order

Phillips underlines throughout how crucial the 'global collaborative process' between the newspapers has been to the success of the WikiLeaks phenomenon. 'A newspaper is no longer as vulnerable as it might once have been if it had run a global story on its own,' she explains.

'This has changed the rules a bit '“ you can't assume you can necessarily stop the story in quite the same way. It would be nonsense if the State Department sought to prevent The Guardian from publishing the cables in the UK when they were going to be published everywhere else.'

Not that Phillips wasn't concerned, but 'having The New York Times involved was helpful. They have this strong First Amendment protection, so it would be singularly unattractive for the US government to try to embargo or limit The Guardian when The New York Times was able to publish freely '“ and possibly other European papers.'

The publication of the logs and cables between September 2010 and the beginning of this year is still recent history but already it has marked the passage into a new age for the media world, where the way information is collected and disseminated has radically changed and where legal risk is assessed differently.

'The world is a different place now. The volume of material we produce and which is sitting somewhere for potentially someone to find is enormous,' Phillips says. 'We're no longer talking about a few filing cabinets; we have clouds and things sitting on clouds, so you can't just go and close down a building.'

Our appreciation of concepts such as privacy is also changing. 'There are two conflicting ideas at the moment: increased openness and accountability of government on the one hand, against privacy on the other. At one level there's greater protection for personal privacy but less in terms of public acceptance of official secrecy,' Phillips continues.

One legitimate concern in the wake of the Vince Cable sting by two Telegraph reporters posing as constituents is that it is becoming almost impossible to anticipate that a conversation is private, which could cause politicians and other officials not to say anything ever.

'There is a need to discuss things on a no-prejudice basis, and without that protection conversations that need to take place because they can lead to a much quicker and better resolution of certain issues will not take place,' Phillips says.

But wasn't The Guardian undermining this process? Phillips agrees there is an argument that diplomats need to report back to their governments without fear of publication, but she defends the newspaper's approach saying that most of the material it looked at was referred to the government which was effectively given the opportunity to classify it and protect it. If classification had taken place, particularly at the highest level, 'we would need to look very carefully at what the public interest would be in revealing it and the likely damage under section 6'.

To appreciate the rapid change in the boundary shift one need only look a few years back, when The Guardian was injuncted by a large bank from publishing particular material. The newspaper's defence was that the material in question was already in the public domain because it was available on WikiLeaks. 'The judge at the time said this didn't amount to publication because WikiLeaks was a small obscure website,' Phillips says. 'It wouldn't happen now.'

Prime target

For all the positive elements that have come out of the WikiLeaks experience, the risk hasn't disappeared. As members of the mainstream media, newspapers, with assets that could ultimately be seized, remain the first targets of court proceedings. 'So of course newspapers will obey court orders '“ but it's not as easy to stop bloggers or tweeters,' she says.

If this wasn't enough, the cost of litigation remains a major disincentive to publication. As recent cases have shown, libel is not a risk limited to mainstream media. Last June a magazine published by a railway enthusiasts' charity with only 430 members was found to have libelled the society's former chairman. The court ordered the 6024 Preservation Society to pay its former chairman a relatively modest £7,500 but the charity's legal costs have been estimated at £385,000.

'If I'm going to fight a case I want to spend my limited budget fighting one that will be worth it,' Phillips says. 'You get a sense that all the cases fought by the papers are unmeritorious but you shouldn't assume that they are devious or difficult '“ either there's a genuine error or there's a grain of truth and the question is how far you've strayed and can you prove it.'

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