Assange was reckless but that might not be a crime

The Herald regularly publishes illegally leaked information, including material from WikiLeaks. The use of this material can be justified if, after giving due weight to its origins, there is an overriding public interest. The Herald has, for example, reported extensively on information obtained from Richard Boyle, who is now facing 166 charges for leaking the Australian Taxation Office’s tactics in collecting debts from small business.

It should not be a crime to publish illegally obtained information and this is especially true in the US where the First Amendment to the constitution protects freedom of speech.

Often the best leaks come from unsavoury sources. Mr Assange was once a hero but lost his shine after Swedish authorities investigated him over allegations of rape and sexual assault dating back to 2010. The Swedish case has created a unique legal conundrum over whether Mr Assange should be extradited to Sweden or the US.

If Mr Assange is sent to the US and it can be proven that he helped steal the information, the difficult question will be whether he should be given any special consideration, either moral or legal, for being a whistleblower.

In general, the Herald backs special rules for whistleblowers. Australia has just passed world-first legislation requiring companies to give protection to whistleblower employees and allowing whistleblowers to sue employers who failed to do so.

Yet this approach has not yet filtered through to the Australian government. For example, Australia is now prosecuting a former Australian Security and Intelligence Service agent who leaked the fact that Australia illegally bugged offices of the East Timor government to obtain a commercial advantage. It seems grossly unjust.

The moral calculus for WikiLeaks and Mr Assange is more complicated. WikiLeaks released a huge dump of material and crowdsourced the decisions on what to make public. This included matters of immense public interest but also lots of other unnecessary identifying material that put lives at risk. Giving WikiLeaks a free pass would also invite foreign spies and others  to use it to wash information such as the emails stolen from the Democratic Party to harm Hillary Clinton’s run for president in 2016.

Unfortunately, much of what WikiLeaks did was reckless. But if WikiLeaks was guilty of bad journalism, that alone should not be a crime. Mr Assange should not be punished unless he has broken the law.


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