- Geoffrey Robertson on free speech
A private-eye describes me as an Australian who's had a vowel transplant, but I got it for many years, I suspect, of bowing and scraping in the British courts.
When my first case, actually, was a free-speech case and I was—I still have those Australian irritable-vowels—I said ‘branch’ and ‘France’ and I had to come before the most terrifying of the High Court judges to explain that I was defending a man who'd been convicted for wearing an indecent t-shirt and I had to tell him what the logo was and I said, ‘M'lord’, trembling I said, ‘m'lord the logo that was found to be indecent reads fuck art, let's dance’. And there was a terrible silence, a terrifying silence. ‘Fuck art let's what, Mr. Robinson?’ I said, ‘Dance m’lord, dance’. And ‘Oh, you're an Australian. What you'll have to learn to say, Mr. Robertson, if you want to succeed in the English Bar, is fuck art, let's dance.’
So this, linguistic, antipathy cuts both ways. I felt sorry for the exquisitely spoken Alexander Downer when he briefly became leader of the opposition and had to employ a voice coach to change his accent from BBC English to Channel 9 Australian. To teach him to say ‘dance’ instead of ‘dance’, and how to amputate the endings of words of more than one syllable. It's just too hot in Australia to say all of the long word. So, forgive my accent.
I'm one of over a million Australian ex-patriates. I live abroad for my work but I get lassoed by the umbilical cord, drawn back to the warm beaches and cold beer and generous superannuation-schemes of the home country. I'm now what is called a dual-national, which means I get my prostate felt in Harley Street and come over to Macquarie Street, Sydney, to have my teeth fixed. If you look at the English smile, you'll know the reason.
I may be an expatriate but I'm not an ex-patriot. I grew up in Sydney in the Menzies-era, in a Western suburb of lower-middle class respectability, which was determined—Sydney suburbs were determined in those days—by dint of the papers that you read. My family took the Fairfax Sydney Morning Herald, which proved that we were more respectable than other families who took Mr. Packer's Telegraph. And infinitely more respectable than those who read Mr. Murdock's Daily Mirror, which my mother refused to have in the house. It was read, she noted, by the men in our street who beat their wives.
And many years later, one of my early cases at the Old Bailey was to plead for a Madam Cynthia Pain, ‘Madam Sin’ as she was christened, who ran a brothel in leafy Wimbledon. I pointed out to the judge that when the police raided they found the Peer of the Realm, MPs and company directors, barristers, solicitors and several vicars. Despite or I think because of my effort she was jailed for two years. And this story of British hypocrisy went round the world. It was made into a film Personal Services. And I was telephoned by my mother, who had been tipped off by one of the wife beating neighbours, and she said, ‘You finally made the front page, darling. It was in The Daily Mirror. Thank goodness they spelled your name wrongly.’
When that particular client was released from prison, she of course was world famous. She was whisked to a BBC news studio and asked why she hadn't revealed the names of her famous clients. And she thought for a moment and she said, ‘Well, me morality is low, but me ethics is high’. A distinction that's eluded philosophers, but may not be a bad credo for a journalist.
Well, growing up in that lower-middle-class, severely moralistic Menzies-era, I owe my life-long aversion to censorship, my abiding sense that it's always counterproductive, to the New South Wales Education Department.
At our leaving certificate we had to study a Shakespeare play and they issued all state schools with an edition of The Tempest, which was the set text. And when I read that edition, it seemed a very flawed, inhumane, racist play. Prospero's unmotivated cruelty to poor Caliban made a mockery of the brave new world he was trying to create. But on the train to school, I noticed that the private school kids had a different edition, a much larger edition, which I probably went out and bought and found it of course a different and very wonderful play. What had happened is the New South Wales Education Department had issued its kids with the bowdlerised edition with all reference to Prospero's attempted rape of Miranda, which is the fulcrum of the plot, edited out. Even, would you believe, Prospero's great speech in favour of chastity before marriage had been entirely cut.
‘But if thou doesn't break her virgin knot before all sanctimonious sacrifice is made with full and height, and holy rite be ministered then no sweeter aspersion shall the heavens let fall to make your contract grow but barren hate sour-eyed disdain and discord shall bestrew with the union of your bed with weeds so loathly that you shall hate it both. Therefore take heed as Hymen's lamp shall light you.’
If only my wife and her school friends had read that at Cronulla, Puberty Blues might have been a different book. But you see what censorship does. I've memorised those lines at age 16 and remember them now. That was, but it was a strange experience in Sydney. Growing up in the ‘60s, reading newspapers in the morning and then going to the university-of-work and hearing what was really happening. The Askin government was irredeemably corrupt and so was the New South Wales police force, but these were subjects that could never be mentioned because of our defamation laws.
But although we thought that Sydney was repressive, Melbourne was even worse. You had an Attorney General named Arthur Wright who passionately believed that nothing should be printed that would disturb his fourteen year-old daughter. At university, I used to write for Oz magazine and our distributors Gordon & Gotch had to blackout words like ‘vagina’ before they cross the border, lest Arthur Wright's daughter would have found out she had one.
It was because of Riler that I suffered my first act of censorship. I had done a satirical piece of the Vietnam War, which was raging at the time, on hawks and doves allocating politicians particular identities in this make-believe aviary. Not difficult with Bob Hawk, but, even though he was a dove, but the piece was illustrated by Garry Shead, who’s now of course a renowned painter whose paintings come at six figure prices. But he had drawn this aviary and bestiary with the animals having low-slung testicles and, believe it or not, Gordon & Gotch insisted on blacking out all suggestions that birds and animals had sexual organs lest it disturb Mr. Riler's daughter.
Well, much later in my life, I did a famous case in England, which involved a study of testicles. It was a case brought against Richard Branson. He and Johnny Rotten were my clients over the Sex Pistols' album Never Mind the Bollocks, Here's the Sex Pistols. The police in some benighted town had prosecuted Richard, once again, for public indecency by displaying the word ‘bollocks’. So I called some expert evidence, a professor, about the etymology of the word ‘bollocks’. It was actually used in Caxton's Bible, for in the meaning of testicles, but by the King James edition it had been replaced by the word ‘stones’. At which point my client, Johnny Rotten, passed me a note saying ‘don't worry if we lose the case, we'll reissue the albums as Never Mind the Stones, Here's The Sex Pistols'.
Censorship is always counterproductive. Somewhere in the archives of this wonderful library if you've got Ned's Armour, you've probably got an edition of Oz in the 60s with Gary Shedd pictures—as I say, they now feature six-figure sum—with an article signed GR. We didn't dare have penned our full names, unless our mothers, lest our mothers find out, but you'll see those testicles blacked out.
These were ridiculous acts of censorship always with the sexist justification that we were protecting wives and daughters. At least Australians didn't ban books on the grounds that they were unfit for wives and servants. As the famous failed prosecution at the old Bailey of Lady Chatterley's Lover back into 1960.
I have a special insight into why Lady Chatterley was not, in fact, allowed for many years after that acquittal into Australia, cause my family was friendly with a member of Menzies’ cabinet, Fred Osborne, who was Minister of the Air. And as a pimply schoolboy I heard him explain to my father that the Australian cabinet in 1960 thought that of course we followed England in everything. Once Lady Chatterley was acquitted and distributed in England we'd have to allow it in Australia. And then he said, ‘Bob Menzies burst into the cabinet room and said, “Gentlemen, I am not going to allow my wife to read this book”, and we were so in awe of him that we agreed’. So, in, because of Dame Patty, concern for Dame Patty, Lady Chatterley didn't arrive in Australia for some years later.
But growing up in Australia in the ‘50s and ‘60s we had no access to information about sex. Unless we had it, of course, which meant a lot of illegitimacies and, uh, a lot of kids prosecuted for what was called a crime of carnal knowledge. But, a great discovery, which I think has probably led me to love libraries ever since. You could get in state libraries certain foreign classics that had been allowed entry without the customs since realising what was in them. And, in my local library, I discovered, to my delight, a copy of The Decameron and a copy of Gargantua and Pantagruel. So, Boccaccio and Rabelais served for what in other Western countries would be catered for by Playboy, which was of course banned in Australia. I hate to think what long-term effect reading these books may have had on my sexuality, but they left me eternally grateful for the State Library system.
Where else could you find information about sex? Well, from the international news pages in 1963. We had an insight into it from the Profumo affair. It involved an osteopath, and no one knew what an osteopath was until 1963 when Steven Ward was prosecuted, and those glamor girls Christine Keeler and Mandy Rice Davies.
As Phillip Larkin has said, ‘Sexual intercourse began in 1963 between the end of the Chatterley ban and the Beatles' first LP’. We read about the Profumo affair, the whippings and canings of men who took down their pinstripe trousers, and we learned what we couldn't read about in all those books that were banned in Australia, God's Little Acre and so on, we learned about hypocrisy.
1963 was really a crucible year and I was talking about it a little while ago at, with others at David Frost's funeral. David had entered television satire in 1963 that was the week that was the year of Profumo, the trial of Steven Ward, when he was made a scapegoat, fraudulently prosecuted. And people started to say, well isn't it time that we pardon Steven Ward 50 years later, have his conviction quashed. And Andrew Lloyd Weber feels so strongly about this that he's written a musical which opens next month called Steven Ward. And at his instigation I've written a book, which is published next month Steven Ward Was Innocent, OK.
Reading the old transcripts of the trial brings it all back. It contains the most disastrous question that has ever been asked in cross-examination by a barrister. Wards incompetent council asked Ms. Mandy Rice Davies, who'd volunteered in chief that she'd had sex with Lord Astor, ‘Don't you realise that Lord Astor has issued a statement denying that he ever had sex with you’. The transcript reads, ‘Giggle. He would, wouldn't he.’
I remember in the playground of my state high school in 1963 singing that ditty ‘Mandy rice, Mandy rice, twice as nice at half the price’. And, uh, I guess ever getting, probably my greatest ambition was once to get together with Mandy Rice Davies. And 50 years later, last week, I achieved it. We, we had tea at the Ritz. And she's had, she said, a slow descent into respectability. Only 69, she's been married for the last 27 years, lives in an upper-middle class suburb in London and has added to the English language and to the Oxford Dictionary of Quotations.
Well, we've now achieved, pretty much, freedom of speech for literature. For good literature by the Lady Chatterley trial, for bad literature, I guess, in the Oz trial. When some school kids, taking their cue from the young Gary Shedd, drew Rupert the bear with a truly bear-sized erection. I'll move on to another Rupert in a moment.
But looking back censorship that's so disfigured Australian libraries in my youth was sexist, it was driven by paternal males and it's now passed on. There is another form of censorship that's lasted a little longer, of course, it's the law of libel. Devised by the upper classes in England, in order to protect themselves from criticism. To stop their escutcheons being blotted and resolve ritz for slander.
When I came to practice libel law in England the main cases where still about accusations of shooting foxes—‘one doesn't shoot a fox old boy, one hunts him down with dogs’—and cheating at cards. But the libel law in Britain and Australia had no public interest defence, unlike in America where, as a result of the First Amendment, the great case of New York Times and Sullivan, you could say anything about a public figure so long as you weren't motivated by malice. This freed the press to publish statements about public figures. And you couldn't publish the same book on both sides of the Atlantic.
One of my cases was working with Willy Shawcross in his book Sideshow. We had to make 22 cuts before his criticisms of officials before it could be published in the UK. There was, this was the time, the famous time when Time Magazine censored from its British edition Daniel Moniyhan’s aphorisms about Henry Kissinger. ‘Henry doesn't lie because it's in his interest. He lies because it's in his nature.’
American public figures flock to forum shop to sue in plaintiff-friendly British courts and US courts then refuse to enforce British judgments on the grounds that English libel-law was antipathetic to the First Amendment. Something had to be done, because English defamation law was causing censorship problems throughout the world. It was part of the English common law that was being imposed on 54 countries that had been colonised by Britain.
Its rigour was exploited by the powerful, especially by, in Singapore, by Lee Kuan Yew, who enriched himself by suing any political opponent who ventured the mildest criticism. He always won, of course, because he'd appointed the judges, who genuinely believed that he was above criticism. Eventually, the only paper that refused to grovel was the Wall Street Journal. And in 1988, on that paper's behalf, I cross-examined Lee Kuan Yew for three days and the judge said at the end that he was increasing the damages because of the hurt that I had caused to his feelings. The Malaysian Bar Association then put out a press release saying this was the first evidence that Lee Kuan Yew had any feelings.
But, well then along came the internet and it's had a revolutionary effect on libel law and on much else besides. It what permitted what by my late lamented friend Vaclav Havel has called ‘The power of the powerless’. Nike is found to have used children to stitch its footballs in India. Suddenly that goes viral. People do not buy Nike footballs. Nike, in panic, gets hold of its subsidiary and raises its pay and prevents the exploitation of children.
There is the case of Domino's Pizza, where a secret video was taken of a Domino's Pizza chef putting cheese up his nose and then spreading it on the pizza. It goes viral on the internet. 15% is knocked off Domino's share prices. So, I do think that in many ways the internet and allowing the powerless to have that little power as customers has been good. You can see it today. I did talk about the scandal of transfer pricing, where Google and Amazon and Starbucks pay no tax, where they make their billions and that caused so much outrage in Britain that no one was buying Starbucks coffee until they made a $20 million donation, voluntary, free of charge to the tax department. Well, in some ways this is good, but there are real problems posed for freedom of speech and I want to look at two of them in relation to invasion of privacy and to protection of national security.
Privacy or privacy, we can't even agree on how to pronounce it is more important than ever in a world that has come to value human dignity. A world where if that is valued, we're entitled to live some part of our life behind a door marked ‘do not disturb’ and that applies to public figures as well. Protection is needed against publication of intimate personal facts, medical records and the like, against bugging and secret surveillance, but always subject I think to a strong public interest defense. The balance between privacy and press freedom should be satisfactory, although there are inevitably grey areas.
One of interesting cases we had in Britain was when a highly disturbed man walked into a public town centre and slashed his wrists in an act that was captured by CCTV, led the police and ambulance rushing to his rescue. Now later, the police had the film and they wanted to show this video of his suicide attempt on television to support their case for more CCTVs in crowd, in public centres. The man who is now fully recovered argued that this moment of mental anguish shouldn't be put on show for entertainment, even for advertising the police. Well, what do you think? The final court reversing the penultimate appeal judgement decided that this moment of madness should remain private. I'm not sure that I agree with that, but these are difficult questions. Grey areas and I think it's a mark of a civilised society, not necessarily if its courts reach right or consistent answers, but at least if they are permitted to try.
There was, some years ago, a journalist from News of the World, a so called royal correspondent, who was also jailed for tapping into the telephone lines at Buckingham Palace and gathering such electrifying news that Prince William had a dental appointment, his father's conversation with the soil society about self-fertilising the garden at Highgrove. The reporter on that occasion pleaded guilty, there's no free speech defence for hacking telephones to obtain tittle tattle and he was jailed and no one protested. The point is that the media that wants and needs the freedom to publish newsworthy fact must accept some limit on its right to rifle the intimacies of citizens' lives. So long as the exclusion zone is limited to the bedroom and the bathroom, and the changing room, and the school, and the hospital, and possibly the grave. Even so, where do you draw the line?
We've had many cases on privacy. The News of the World accused Max Mosley, who is the head of the International Motor Racing Foundation, but also the son of that infamous Nazi supporter in the 1930s. They accused him of spanking a number of consenting women who they claimed were dressed as Germans and one had a Lufthansa uniform, I think, and, they headlined it Nazi Sex Orgy. Although, on examination in court, it turned out merely to be a good-old-fashioned British sex orgy. And, the judge awarded Max $100,000 damages because it wasn't a Hitler-themed party. I'm not sure what a jury would have done. I, I, depending on whether they viewed Max as a depraved old lecher or, or not bad for his age. But, he was understandably angry. His son committed suicide when, as a result of the publicity, and he got together with Hugh Grant and other victims of the tabloids and they persuaded the public and, and then the politicians.
But media intrusion needs regulation. So we had the Leveson Report and you had Finkelstein here, and the result is a royal charter that may well restrict the right of the press to publish important facts. Talking about fines about $1.5 million on newspapers that behaved unethically and they'll still be sued for breach of privacy.
In some respects this is a disturbing development for freedom of speech, but it's come about because of the newspapers. They've been the authors of their own misfortune. It's a reaction. A real and genuine reaction to tabloid intrusion, especially by the Murdoch press, and to the confidence trick that was the press council, this idea that newspapers will regulate themselves voluntarily.
My favourite example of voluntary self-regulation in Britain is when the tabloids snuck up and some paparazzi captured Princess Diana almost naked, not quite, but pregnant on a private beach. And they were severely condemned by the press council. And the next day the Sun ran the pictures again to say, ‘this is what the row is all about, folks’.
So they, the final, of course outrage, was the hacking of the phone of the murdered 16 year old schoolgirl Milly Dowler that was so disgusting that it persuaded almost everyone that the line had to be drawn.
Now, I know that Rupert Murdoch is enormously venerated in this country. I think he's a great Australian and in Britain too they think he's a great Australian in the sense perhaps that Attila was a great Hun. But his chief leftenants’ today, and for the next six months, are in the dock of the Old Bailey. The same dock that was once inhabited by Stephen Ward. And they'll be followed over the next year by over 100 journalists and, more worryingly, by their sources. Now, to do Rupert justice, his publications have given a prurient British public what it wanted. That Sunday morning schadenfreude of reading about the grief’s and adulteries and entanglements of others.
Indeed I think the British Murdoch tabloids operated in Britain for many years as the equivalent to Saudi Arabia's morality police, watching and besetting celebrities, as well as the non-entities who are related to them or having relations with them, and the tables are now turned. Lord MaCaulay once famously said, ‘There is nothing so ridiculous as the British public in one of its periodic fits of morality’. But it can be not just ridiculous it can be dangerous, as with Steven Ward, these periods where the hunt is on for scapegoats for people who tell us what we want to hear until we're sick of hearing it and we want to find a scapegoat to stop them.
So, I'm worried about the fairness of the trials of all those journalists and their sources just as I fear the prejudice that's being whipped up by another scandal, the massive child abuses of Jimmy Saville, who was protected by British libel law and by the fact that he was Mrs Thatcher's favourite cheerleader. And I'm concerned, for example, that Rolf Harris should have a fair trial at this time of heightened public fury. And one of the reasons I wrote the book about Steven Ward was to show how possible it is, even with the best of institutions, with a jury and a judge and so forth, for public pressure and panic and hysteria to produce a wrongful verdict.
But the point I want to make, from a country that's not only punishing newspapers for invasion of privacy by awarding damages against them, by regulating them, and by putting journalists in the dock on criminal charges, is that there is a limit here on free speech and it is time to draw a bright, as bright and clear a line as we can.
I've tried to do that, I'm the latest Leveson-Finkelstein figure. I've been a, I was appointed by the government of Mauritius to do a report on media law. Again, like England and Australia, Mauritius is a country where the common law had failed to develop any privacy protection. And a year or two ago an Irish woman on her honeymoon was viciously murdered in her hotel room and a newspaper published, front page, a picture of her corpse. Leaked, I suppose, from a police photographer. The fury of the Irish government was, I think, shared by the people of Mauritius. It was a Milly Dowler episode.
And so I was commissioned to draw up a set of laws and codes. I've done so by recommending a press ombuds person with statutory powers to force newspapers to publish merely corrections for demonstrable errors of fact. I don't think that there is a public interest in allowing false fact to remain on the record. I don't think that this is in any way a threat to free speech. What it does when falsehoods, demonstrable falsehoods, are published, is by requiring a newspaper to publish a correction that cause…that cures abuses of free speech by the simple expedient of ordering more speech. Speed I think the writer replies, well, where people are demonised in the media. I mean, Clive Palmer can't be all that bad. They are entitled to answer back.
This is what I would like to call fair speech and I've devised a privacy law for Mauritius, which does require the media to stop when it proposes to publish intimate personal details and consider whether there's a real public interest in doing so. That of course will provide a, a very, an overwhelming defence. I've tried to formulate in words what counts as public interest. Obviously, exposing dangers to public health and safety, exposing the hypocrisy of public figures, and so on. But the point is that the free…the limits on free speech can no longer be confined to that classic example of stopping people from shouting fires in crowded fires, in crowded theatres.
There is a requirement for fair speech, which the law can properly enforce. Firstly, by requiring corrections to demonstrable areas of fact. Secondly, by requiring that newspapers allow a right of reply to those who attacked personally, if only, a letter to the editor. And thirdly, by publishing, at least by the award of damages, invasions of privacy that cannot possibly be justified in the public interest.
I think that those limitations—and I think they would apply to newspapers because they can't apply to books—I think it's one of the worst features of the old libel law that publishers were frequently required to withdraw books, even to destroy books because of one passage. Equities, and the great thing about the internet, of course, the reason why the internet is libel-friendly is that if mistakes do occur they can be hyperlinked to a correction.
National security, of course, provides a greater threat to freedom of speech and it's a threat that we're hearing a lot about at the moment. Let me then talk for a minute about Julian Assange.
Julian and I have little in common, except for the fact that we were both conceived on Magnetic Island in Queensland. A little known fact. Me at the end of the war, him rather later. But he was an extraordinary figure, he himself thinks that he's on the autistic spectrum, and he invented a kind of electronic dead letterbox where people could post their secrets. And initially WikiLeaks began as a very valuable service for people who could, wanted to say something, discovered something horrible about their organisation but couldn't say so because of fear of reprisals and so, understandably, one of his first exposes was of the Church of Scientology, which has this theory about getting its enemies.
He then started to expose tax havens and people generally thought that was good. He exposed corruption in Kenya. And then Bradley Manning, or Chelsea as we must note to call her, came along and gave him that data dump. An extraordinary first example was the helicopter, the American helicopter pilots rejoicing in killing people who turned out to be Reuters reporters and several children, and that was called collateral murder. Wrongly, as I pointed out to him. It should really have been collateral manslaughter, but there you go. It was outrageously reckless conduct by the American pilots who were never disciplined in any way.
And then in that Manning dump we got the Iraq War logs, which were terribly important to historians and to people writing about the Iraq War. They showed that the casualty figures, for example, were much, much greater than the American government was suggesting. And then came Cablegate, and gosh did that cause fury in, among America's, commentators. When Assange contacted me, he was a fellow Australian up to his neck in trouble. He had Sarah Palin urging that he be hunted down like bin Laden. And bin Laden hadn't been actually hunted down at that point, which, would have given him a few more years. Rush Limbaugh, America's most popular radio commentator said, ‘Julian Assange should die of lead poisoning from a bullet in the brain’. And that was the atmosphere when I met him.
There was this, well I, I put him up for a few days while this nonsense was going on. When we had once Salman Rushdie in the attic after the fatwa, and even more worriedly we had James Hewitt in the attic after the press had discovered his affair with Diana and he was a wanted man.
But, Julien came to stay, extraordinary man. He was…he didn't seem to sleep. He was always in the kitchen, hunched up over his computer like a question mark. And I had to point out. We had an open, have an open kitchen and, I said ‘Julian, you can be seen from space. The Americans can see you through the kitchen’. So he finally went to bed. But the great lie, of course, that was started at that point it was continued in, in a rather bad film called The Fifth Estate, is that he put lives at risk and this was the mantra of all those who want to clamp down on any kind of exposure of government action. ‘Lives at risk’. This was a lie. And the Pentagon has now admitted that it was a lie.
When Chelsea Manning was being sentenced they were asked to produce any evidence that his leaks had done harm and they couldn't. Other than, of course, diplomatic embarrassment, in which there was plenty. But, as Hillary Clinton herself said when she told various countries to expect the worst from American comments about them, they said, ‘Well, you should see what we say about you’.
The…the lie that lives were at stake is nailed simply by this, that Manning, as well as three and a half million other Americans, had access to this category classified as ‘secret’. And the reason why they—so many people had access—was that it was a strict rule of the classification policy that whenever lives might be at stake, or physical injury might be at stake, the name…the classification would be either ‘ultra’ or ‘top secret’. And so obviously no-one’s life was at stake because it wouldn't have fallen within that classification, and the Pentagon have finally admitted this.
One of the ironies I find about the whole Cablegate affair is that the release of the cables show that US diplomacy was fairly principled and fairly good. I mean it was producing, it has produced a CIA view of the world, and President Putin initially reacted by accusing Julian Assange of being a CIA Agent.
But, it has told many countries about the corruption of their rulers. The Arab Spring was partly fuelled by the WikiLeaks cable. About the Ben Ali’s regime headed ‘What's yours is mine’. And there were 90 countries in which WikiLeaks has released evidence of corruption. I've appeared in some of them. I've appeared, for example in Georgia, in a case involving a man who was wrongly sent to prison. I appear in the European Court of Human Rights. And in Georgia they have a 98% conviction rate. So I'm arguing that with a 98% conviction rate you can't have an independent judiciary. But the people who are against me in Georgia and Ukraine and so on places and Romania often come up to me and say how much they just want to know about Julian Assange.
He's a hero in so many countries, despite his despite the hostility that he evokes in in America. So let me try, eh, to crystallise my views on the kind of leakage that we've seen from WikiLeaks. I think it's a government's job to protect its own sources, but this doesn't relieve publishers from moral responsibility if the government misclassifies or names individuals who might suffer reprisals.
I don't think Assange is an information absolutist as he's been portrayed. I don't think he's a Johnny Appleseed prepared to sprinkle any information anywhere. And I do think that the film The Fifth Estate, which is a bad film, although it's got a wonderful performance by Benedict Cumberbatch as, as Julian Assange, but it's based on this lie and Steven Spielberg I think deserves some criticism for producing a bit of Pentagon propaganda. The lie that the WikiLeaks cables might have put lives at stake.
But there is a problem here and there’s no bright line solution. Human rights groups have generally welcomed WikiLeaks and have awarded prizes to Assange. But at another level, there is a view that WikiLeaks exposure can hinder, for example, back-channel work to help refugees. And I think that, on balance, WikiLeaks has done more good than harm. There's hardly a piece, reportage that you can read about modern policy without a reference to a WikiLeaks revelation.
But we can all envisage situations where leaks are wrong and should be severely punished because of, for example, the criminal way that they'd been obtained. If they're obtained by bribery or duress, or telephone hacking, or where they would obviously put lives at risk. But what the WikiLeaks phenomenon calls for but hasn't received is a cool-headed appraisal, not only of US government information policy, but developing an international media-law principles for dealing with worldwide publishers of national security information.
I've suggested a four-part rule. Firstly, citizens everywhere have a presumptive right to know what governments do in their name. Secondly, governments and their public servants and contractors bear sole responsibility for protecting properly classified information and the sources that provide it. Thirdly, outsiders who receive or communicate confidential government information should not be prosecuted unless they've obtained it by bribery or duress or illegal hacking or have actively incited a source employed by the government to breach his or her duty. And finally, whistle-blowers who reveal human rights violations should have a public interest defence, which would protect them if the information revealed criminal, including internationally criminal, behaviour by the state. That would cover Bradley Manning's release of the Collateral Murder Tapes. The public has at least a right to know if war fought in its name is killing innocent civilians through illegal targeting decisions.
So, there we must leave Julianne Assange. He is at least safe in the Ecuadorian embassy. In Ecuador, according to international law, so long as he doesn't lean too far over the balcony and falls into the hands of the British Bobbies who are awaiting him, in which miraculously, thanks to international law, he will be deemed to leave Ecuador and enter London. This is, of cause there was Scotland Yard heard a rumour at one point that he was going up on the roof and smoking Cuban cigars. And so they planned to have a snatch squad from helicopters to go and get him. But he didn't, they were then told that well maybe diplomatic immunity extended upwards and they couldn't, that would be an invasion of Ecuadorian sovereignty.
So there he is. You can go—it's a new tourist attraction really—you can go and see, you can buy your hamper at Harrods and take it to him. He's still operational. People say 'Oh Assange is finished, there's no interest in WikiLeaks any longer'. Well, look at The Age this morning and you'll see WikiLeaks still seems to be in business quite useful business, quite rightly, on the front page suggesting the Australian government was really going to support an international copyright treaty that would damage writers, it would damage poor people by supporting big farmer and the copyright claims of the American drug companies.
So, there you are. But the real people would saying this a couple of years ago. ‘He's Australia's L Ron Hubbard’ was one snarky headline, even though he's very different to L Ron Hubbard. He has no followers and certainly he's got no money, which is the main difference I suspect.
So he's still in business. And what they were saying this and then, suddenly, Edward Snowden disappeared and reappeared with his sidekick Sarah Harrison shepherding WikiLeaks, shepherding what is far more major leak, I think, than Bradley Manning exposed. We at least had some sense of what Bradley Manning was, the material was on about. But we had no sense of the all-pervasive spying that Edward Snowdon now thinks is possible that the documents he's revealed suggests.
I think its right to call Snowden a whistle-blower. Some critics say oh, he's a leaker, not a whistle-blower, but I think a whistle-blower is just a leaker with something important to leak. And he is someone who doesn't have the personal problems that have besetted Chelsea Manning. He is a straight talking, straight thinking 29 year-old American. So straight that the only unusual fact that the media could dig up is that his ballet dancing girlfriend once pole-danced. He's not in the military, so he can't be court martialled.
There's a grand jury still sitting on jury in the Assange's case in Virginia. Grand juries will do anything the prosecutor asks them. America lawyers say, ‘Oh, the grand jury will indict a ham sandwich’ and so Julian Assange has not only to face an indictment by a grand jury he will no doubt—a grand jury has already indicted Edward Snowden—and I would suspect that there is a sealed indictment that indicts Assange as a co-conspirator, cause rightfully or wrongly this is what is believed in Washington. Probably wrongly, but there it is.
Now Snowden has exposed the fact that PRISM and other programs run by the National Security Agency in combination with GCHQ, which is the British spy agency, in combination with DSD, Remember Defence Signals Intelligence, our own spy agency, which seems to be quite active in the embassy in Indonesia, has really it's all based on the accuser agreement of 1946, but this vast monitoring octopus circumvents privacy protection anywhere. Any electronic communication can without let or hindrance be scooped up if it contains one of 70,000 key words. You just, any email you write which says Julian Assange will be scooped up and there are 70,000 key words which will be scooped up and stored somewhere at Cheltenham and will be read.
And there is, Snowden exposed the fact, this was amazing, that there is a secret court. Judges handpicked by the American Chief Justice, which is actually making constitutional law deceiving which have allowed spying on Americans as well as foreigners. Americans don't care about how many foreigners they spy on or who they spy on. Angela Merkel, no, they don't care. But to spy on an American, that will get 200 votes in Congress from left Democrats and right Republicans who will be extremely upset. This court has had 20,000 NSA applications seen over the last ten years and it’s allowed everyone, everybody except ten of them. So only ten times has it stopped NSA spying on America.
And President Obama has accepted that the revelations exposed by Snowden have exposed a system that has called for public debate. John Kerry, on the other hand, called Snowden a traitor and those charges have been brought against him under the Espionage Act.
Well, I think Snowden has first of all, of course he's, brought up Assange back into the picture. Even holed up in the Ecuadorian Embassy, he can still inspire confidence in the consciences of otherwise unremarkable people. The risk reprisals, loss of employment—35 years Bradley Manning got in an American Supermax—to get out of truth that they believe to matter. This is a good thing if there is some objective or at least measurable grounds for their belief. And again, there must be a public-interest offence to any prosecution brought against them. Public interest defence for whistle-blowers is entirely lacking, either in the American Espionage Act, which Assange may be charged with, or indeed in the UK Official Secrets Act, or I suspect In the Crimes Act.
Although it was interesting the ignorance that some people have of the Australian Crimes Act. Julia Gillard, when she was Prime Minister, immediately said, ‘Oh, this is a crime’. And of course, it's not because there's a wonderful case in 1983 before a very strong high court, it was a Mason court, where George Munster and Ricky Welsh published a book of telegrams from East Timor, and the High Court said that so long as they didn't use the, so long as they simply reported these telegrams the Crimes Act didn't come near them. So Julian Assange is safe here.
But it is remarkable how, perhaps since 9/11, we've lost any sense of the Orwellian nightmare about State invasion of privacy. Only in Germany, with memories of the Gestapo and the Stazi, were there any big public protests over Snowden's revelation.
I mean, I'm in favour of looking for terrorist needles in data haystacks. But I did cringe when the British government responded to Snowden by saying the words of its foreign secretary quote, ‘law abiding citizens have nothing to fear’. It's precisely law-abiding citizens who have had their careers ended, their characters besmirched by dissemination of secret state surveillance. Until, and that in this country and in Britain and America, until there is real control over the collection, distribution and keeping of intercepted data—not by patsy politicians and who give warrants to telephone-tap and bargain so they are almost like rubber stamps; not by secret judges, secretly selected judges—law abiding citizens are going to be at risk.
And I think one of the great ironies of Snowden revelations is you know the, the, the major victim of American metadata targeting. Metadata, as Snowden explains, is the ability to work out exactly who has called us and who we have called. And the first victim of the NSA's metadata search-machine was none other than General Petraeus. The CIA. About to be confirmed as CIA director, suddenly the NSA found that he was guilty of, only in American eyes, of adultery. He had a four month affair with his biographer that they worked out from his metadata. So I wonder how many others in less-exalted positions, do the secret spies now have the opportunity to ruin? And that is the evil that it's most important to prevent in a world where there is no hiding place.
The intractable problem, of course is that no oversight system has yet been devised that had held the secret state to account. Because the overseers sit in secret, they have security clearance such a level that precludes any critical thought about those who had accorded it to. I mean, we had the spectacle in Britain a few days ago of the hitherto unknown heads of the MI6 and GCHQ and MI5 appearing in front of a far Parliamentary committee to make broad, wild claims about how The Guardian had imperilled international security by publishing the Snowden revelations. These people were responsible, only a few years ago, for insisting that Saddam Hussein had chemical weapons. We went to war on the basis of these people's information. So, it has to be taken with a pinch of salt the idea that every terrorist is huddled around the sun in the sand reading The Guardian. It hasn't improved The Guardian's circulation, as I said to Alan Rusbridger, who's in town this morning. But it is a…and other experts have said 'well actually some of Snowden's claims were a bit exaggerated and it's all very good that the terrorists are terrified. That they, and they, they're not communicating with each other. Because when they don't communicate there are no, there's no terrorism’.
So anyway, and the issues, the problem is that you can't always believe, or often believe what is said by intelligence agencies. And there are so many examples of where they've got it wrong. Politicians, army generals and anonymous judges in secret courts provide no reassurance that data collected on law-abiding but inconvenient individuals accessed under the excuse, the reason of looking for terrorists, will not be used to destroy their careers. And that is of course the case of General Petraeus. One doesn't know how many other people are in that boat.
The real irony of Snowden's revelations is that they've exposed a system under which state officials inevitably have access to vast amounts of personal information on individuals, who can by no stretch of the imagination be described as terrorist suspects, and the only way to deter its misuse is to punish those who leak it. Either to the media, which is always avid for sensation, or to other agencies of States that might be interested in pursuing it, to the detriment of that non-terrorist individual.
And Snowden essentially, I think, has revealed that for all the legal pretensions of domestic law and international law to upholding privacy as a human right, there is no hiding place. Our thoughts whenever electronically transmitted may be scooped up by the State and used however its guardians, its heavily vetted loyalists, determine.
The quis custodiet ipsos custodes question ‘Who guards the guardians?’ comes back with the post-Snowden answer, 'Nemo', nobody.
'Then along came the Internet, and it's had a revolutionary effect on libel law... it permitted... the power of the powerless.'
- Geoffrey Robertson
About this video
International human-rights lawyer Geoffrey Robertson QC discusses free speech and how to balance privacy and national security.
He weighs up the release of information in the public’s interest versus the fate of international whistleblowers such as Julian Assange, Chelsea Manning and Edward Snowden.
This event took place on 14 November 2013 as part of the Big Ideas Under the Dome lecture series, celebrating the centenary of the Library's domed La Trobe Reading Room and its role in inspiring creativity and ideas.
Geoffrey Robertson QC has been counsel in many landmark cases in constitutional, criminal and media law in the courts of Britain and the commonwealth and he makes frequent appearances in the Privy Council and the European Court of Human Rights.
He writes and broadcasts regularly on international legal issues and creates Geoffrey Robertson’s Hypotheticals for television and for ethics education.
Geoffrey lives in London with his wife, author Kathy Lette, and their two children.