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Co-founder of the controversial website Wikileaks, Julian Assange, has been all over the news recently following his arrest at the Ecuadorian Embassy in London. The arrest came after Assange had been living at the Embassy for the past seven years, claiming political asylum.

Assange has been charged with numerous offences, such as failure to surrender to court, sexual assault allegations and conspiracy to hack a classified US government computer system.

The recent focus on Assange has brought attention to Wikileaks, a website which publishes secret information, which is often leaked by anonymous sources.

This begs the question: Is Wikileaks legal?

 

Freedom of opinion and expression

Freedom of opinion and expression refers to the right to hold opinions without interference or restriction. The expression can be made through any medium – written, oral, advertising, broadcasting, social media, artwork, etc.

However, this freedom is subject to some exceptions. Access to certain websites and content that encourages violence, for example, are not allowed.

These rights come from the ICCPR – the International Covenant on Civil and Political Rights. Countries who are signatories to the ICCPR, of which Australia is one, are expected to enact legislation that is line with the Covenant.

For example, the ICCPR requires that signatories outlaw the vilification of people based on their race or religion. In Australia, this can be seen in the Racial Discrimination Act 1975 (Cth).

 

Conspiracy to hack US government computer

The US has charged Assange with conspiracy to hack government computers, therefore US law must be considered, rather than Australian law. The US charged Assange in 2018, and they are now asking the UK government to extradite Assange to face those charges in the US.

Assange allegedly received over 740,000 US war-related documents through an intelligence analyst in the US army. The indictment explained that Assange “did not possess a security clearance…and was not authorised to receive classified information of the United States”. Assange allegedly then published the information on Wikileaks.

 

Specific charges

The indictment says that Assange violated the following US laws:

  • Title 18, United States Code, section 641 – The embezzlement of public money, property or records.

 

  • Title 18, United States Code, section 793 – Gathering, transmitting or losing defence information.

 

  • Title 18, United States Code, section 371 – Conspiracy to commit an offence or to defraud the US.

 

  • Title 18, United States Code, section 1030 – Fraud and related activities in connection with computers.

 

Espionage

Some commentators have suggested that Assange could be charged with espionage, however this has not occurred to date.

The US Espionage Act 1917 says that espionage occurs when a person obtains information about national defence with the purpose of injuring the US or helping another country gain an advantage over them.

Considering Wikileaks has published hundreds of thousands of documents relating to the US’s defence, espionage could be a possible cause of action. However, the US would have to prove that Assange’s intent was to injure the US or help a foreign country gain an advantage over them, which could be difficult to prove.

 

Conclusion

Although the US and Australia, (and many other countries) have freedom of opinion and expression, this freedom is not absolute. There are limitations to all freedoms that we have. Many people have argued that Wikileaks is a media site that merely publishes information that is in the public interest, however others have claimed that the information on Wikileaks could be harmful to the US.

Photo Source: New Media Days / Peter Erichsen

About the authors:

This article has been co-authored by Chelsea McNeill and Steven Brown at Lynn & Brown Lawyers.  Chelsea is in her fourth year of studying Law at Murdoch University.  Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.

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