Latest Assange hearing puts focus on freedom of expression
Protesters outside the High Court for the first day of last week’s hearing. Photo credit: Guy Smallman
Last week, Julian Assange’s legal team were in court for what might be the WikiLeaks Publisher’s final opportunity to persuade a British court not to extradite him to the United States, where he faces 18 charges, including 17 under the notorious 1917 Espionage Act, focusing on documents WikiLeaks published between 2010 and 2012. If convicted, Assange is likely to spend the rest of his life in prison.
Blueprint’s Bridges for Media Freedom project has been publishing twice-daily reports from all of the Assange hearings to date, including last week’s, and you can find those here. This article focused on one line of argumentation presented last week – arguably the most far-reaching proposed by Assange’s legal team, and that is the likelihood that extradition would represent a significant and disproportionate interference with freedom of expression, as guaranteed under Article 10 of the European Convention on Human Rights (ECHR).
A number of international human rights officeholders, and a plurality of media freedom organisations, have expressed concerns about the case. In May 2022, the Council of Europe’s Human Rights Commissioner, Dunja Mijatovic said that Assange’s extradition would have a “chilling effect on media freedom” as it “could ultimately hamper the press in performing its task as purveyor of information and public watchdog in democratic societies”.
Just last month, the Parliamentary Assembly of the Council of Europe started the process of preparing a report on “the detention of Julian Assange and its chilling effect on human rights” and passed a resolution that “reiterates its [2020] call for the release of Julian Assange.”
The interest of these different offices of the Council of Europe is important. Should the two High Court judge who heard Assange’s application for permission to appeal last week refuse that application, the only further recourse would be an appeal to the European Court of Human Rights in Strasbourg directly.
Over the years, the Strasbourg court has made a number of decision that provide strong (but not absolute) protection for journalism that furthers public scrutiny of the actions of public authorities. Where military or other sensitive information becomes the subject of journalistic inquiry that, like any other publication, must be assessed on the basis of a balancing of interests, in which the public interest always plays a role. In cases where the confidential information has already been published elsewhere, for instance, the ECHR has held that further publication cannot be considered a violation of a state secret or espionage.
One of the principles behind extradition is that charges laid by the state requesting extradition must have an equivalent in the state that receives that request. In the 2021 Westminster Magistrates’ Court decision that Assange’s legal team is now seeking to appeal, the District Judge ultimately rejected the Article 10 arguments on the basis that she considered that the documented conduct would constitute a violation of the UK’s Official Secrets Act. In 2002, the House of Lords – which was then the highest appeal court in England & Wales, upheld the prosecution of MI5 whistleblower David Shayler, partly on the basis that an official decision to keep information secret outweighs all other concerns.
Setting aside for a moment, that the UK Official Secrets Act has never been used to prosecute a publisher – and that the publications at issue in Assange’s case, ultimately sourced from former US intelligence officer Chelsea Manning, are arguably some of the most consequential disclosures of all time – the Shayler ruling pre-dates, and seems distinctly out of step with, several important Strasbourg rulings on whistleblowing cases.
This series of cases has been extremely influential, and informed the principles embedded in the EU’s Whistleblower Directive of 2019 (though the protections offered by the EU and the Council of Europe’s case law are not absolutely identical). At the High Court last week, one of the barristers representing Mr Assange, Mark Summers KC cited several of these cases, including Guja v Moldova (2008) and Halet v Luxembourg (2023). Other cases that have come before the Strasbourg Court, like Burcu and Toma v Romania (2013) have vindicated whistleblowers from the security services who revealed information of public interest.
Speaking to the Court last week, Mark Summers said that "Ms Manning was revealing apex level crimes condoned by the army, indeed the state, which employed her… It is difficult to conceive of a disclosure in the greater public interest." If the case had come before the Strasbourg Court, that would certainly have been taken into account. While counsel for the Government of the United States stated it would be “unrealistic” for Manning to be regarded as a whistleblower, there is reason to believe that the Strasbourg court might come to that very conclusion.
Why do whistleblowing cases matter when we’re talking about the prosecution of a publisher? Not only is it inconsistent to prosecute a publisher, when their source has been recognised as a whistleblower, the Strasbourg court has been clear that journalists cannot be guilty of a crime in publication when their acquisition of information is not itself a crime. One of the most controversial prosecution theories produced by the US in this case is that a journalist can be considered to be in a criminal conspiracy with their source, which seems to run contrary to the way Article 10 law has been developing.
As Mark Summers told the High Court, “If you think Strasbourg would consider the A10 argument in this case, then it must be arguable here.” It could conceivably still be the case that the Assange case prompts a rethink of the way Article 10 is protected in the UK, where the existing law predates important cases from Strasbourg. If that is to be the case, the decision before the High Court judges considering last week’s application to appeal may be whether they want those rules to be redrawn by judges in London, or at the European Court of Human Rights in Strasbourg.