The Criminalisation of Whistleblowing: A Threat to Freedom of Speech?

If liberty means anything at all, it means the right to tell people what they do not want to hearGeorge Orwell

During the 60s and the 70s, there was considerable interest in the question of secrecy among the public, many of these were advocacy-oriented. However, as this interest declined during the 80s, the practice of secrecy in foreign policy increased. While secrecy is the standard procedure for many intelligence agencies irrespective of public interest, and a practice that may be motivated by considerations such as national security and bureaucratic politics, many argue that governments are increasingly exploiting it to suppress facts in order to avoid controversy and embarrassment.

Whistle-blower laws were initially adopted as part of anti-corruption initiatives, rather than as part of a human rights effort. It was only at the latter of the 20th century that arguments for whistle-blower protection began to be articulated in terms of human rights.

So, what exactly is whistleblowing?

Whistle-blowing involves disclosing information to the public or a higher authority about any wrongdoing. Whistleblowing should be differentiated from ‘leaking’, in which a person ‘covertly gives material directly to the media, to seek support and justification in the court of public opinion. There have been numerous high-profile cases in recent years such as the cases of Chelsea Manning and Julian Assange; all of them generating varied concerns for human rights.

Chelsea Manning, Julian Assange and Wikileaks.

It’s debatable whether Chelsea Manning and Julian Assange are heroes or traitors. As it is now widely known, the Wikileaks odyssey began in 2010 when Manning, a US military intelligence analyst in Iraq, downloaded the contents of a secret military database and submitted them to Wikileaks. The information, which was mostly made up of military and diplomatic records, included proof of civilian fatalities in Iraq and Afghanistan, US attempts to cover up the CIA torture programme, and other public-interest issues. In July, Chelsea Manning was charged with several offences, which were revised in March 2011 to a total of 22. These included breaches of Articles 92 and 134 of the Uniform Code of Military Justice, as well as the Espionage Act, with the most serious charge being ‘aiding the enemy, a capital punishment.

Wikileaks, founded by Julian Assange, presented itself as an ‘un-censorable platform for untraceable mass document disclosure’. Recognised by many as one of the most acclaimed ‘objective journalists’ of the century, Julian Assange is widely known for having leaked classified information including the corruption in the family of former Kenyan president Daniel Arap Moi, the standards of operating procedures for the Guantánamo Bay detention centre, and the controversial video of US military in Baghdad in July 2007; which catapulted Wikileaks into the mainstream media, and increased concerns surrounding governments and secrecy. The video portrayed the terrible truth of US military attitudes during ‘war’, such as inability to identify targets, haste to murder, and lack of care even for innocent bystanders; all just in 39 minutes. In his BBC article titled ‘Julian Assange: the Whistle-blower,’ Stephen Moss posed an intriguing question: ‘Is Wikileaks the journalistic model for the future?’, people like me would argue that it is not, although it should be. For many years, WikiLeaks was associated with digital activism that marched with truth and its extreme resistance to secrecy and manipulation of media reality, thus freedom of speech and a journalistic model that we are all familiar with and entitled to; freedom of the press. However, as highlighted in the case of Julian Assange, this freedom may be constrained, raising questions such as ‘when are freedoms of speech, and press acceptable?’. The reality is that if there is such a concept as an ‘acceptable’ form of freedom of speech or press, and by that, I mean freedom within regulatory obligations established by the state, there is simply no freedom of speech or press. Freedom of speech and which includes the press is a human right, not the prerogative of a politician nor one that belongs to the journalist.

What is freedom of the press, and why is it vital to have within our societies?

The idea that communication and expression through different media, including written and electronic media, especially published information, should be regarded as a right to be freely exercised is known as freedom of the press or freedom of the media. Such freedom means the lack of interference from the state. Article 19 of the 1948 Universal Declaration of Human Rights states that everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference, as well as the freedom to seek, receive, and impart information and ideas through any media, regardless of frontiers.

Today, Facebook, Twitter, and Instagram have taken up the paradoxical banner of excessive transparency. In other words, the same mega-corporations that Assange fought against are now in power; this is not a coincidental event. The controversy of Cambridge Analytica, where personal information was obtained for political gains from millions of Facebook users, is an example; it shows how easily media influences human behaviour.

The press provides, or is meant to provide a platform for a diverse range of voices to be heard, it serves as a watchdog, activist, and protector for the public on all levels, and should not be a tool for political advertisement, and the recent developments involving Manning and Assange only highlight the fundamental concerns surrounding the exposure of government abuses. Frank La Rue, for instance, emphasised the close relationship between the right to information and the right to truth, specifically as facilitators of other rights, provided access to accurate information is required when seeking to address human rights breaches.

Civil and criminal law violations need a level of transparency that is not always there for justice to be served and wrongs to be righted. Human rights breaches must be recognised and prosecuted. Such acknowledgement and accountability are in the best interests of the victims, their families, and their communities, but it is also in the public interest in general; transparency might lead to the change of the system under which the human rights abuses were committed. The right to accurate information is unfulfilled if people in the private and public sectors have the ability to reject such access when it is in their best interests to do so. As a result, the right to accurate information must be supported by the freedom to distribute this information when it is in the public interest and when the responsible actors are unwilling or unable to do so.

Whistleblowing in the UK and USA

The United Kingdom has the most stringent whistle-blowing legislation in the European Union. In the late 90s, 319 whistleblowing legislation were introduced although solidly established in court cases only from the 80s to the early 21st century. Even So, despite a long history of press freedom, the UK has recently used anti-terrorism legislation to discourage whistle-blowers and violate journalistic anonymity.

Similarly in the USA, despite having some of the strongest whistle-blower policies in the world, there has been far from an exemplary reaction to people suspected of ‘blowing the whistle on concerns of national security, secret information breaches, prosecuting individuals, and imposing severe punishments. National security has been and continues to be the major emphasis and criterion in terms of whistle-blower protection, and while the United States is powerful in theory in comparison to many other countries across the world, it is not so much in actuality. The USA in fact became a key example of the power of the whistle-blower in exposing state activities and exemplifying the constraints that a whistle-blower faces when the ability to obtain information conflicts with national security and foreign policy.

But, why is the criminalisation of whistle-blowing a threat to freedom of speech, expression, or press?

A whistle-blower thinks, expresses, and speaks; though they may also write an assessment of a problem; they are disseminating information through their speech and expression. This information might include cautions about dangerous activities, allegations of illegality or insufficient vigilance, or expressions of concern. As a result, whistleblowing fits under the rights and freedoms established by the 1948 Universal Declaration of Human Rights. The severe persecution of whistle-blowers indicates a failure to recognise the importance of human rights; one of the essential foundations of a democratic society and one of the basic requirements for its development and the fulfilment of each individual. The trials of Chelsea Manning, Julian Assange and the many that may follow symbolise the beginning of the end of our freedom of thought, speech, expression, and press; potentially becoming a terrifying reality for many more journalists on the verge of exposing comparable atrocities. It is consequently critical to protect ‘journalistic’ freedom, regardless of whether someone is labelled a journalist or not, which means that the safety valve for whistle-blowers must stay available and should not be removed under any circumstances. The loss of freedom is never an instantaneous event; it is gradual, but once it occurs, it should be noted it is difficult to regain.

REFERENCES

  1. . Wim Vandekerckhove, “Freedom of expression as the “broken promise” of whistle-blower protection”, LA REVUE DES DROITS DE L’HOMME(2016), Online since 23 November 2016, connection on 11 August 2021.[1]
  2.  Jesselyn Radack & Kathleen McClellan, The Criminalization of Whistleblowing (2011)
  3. Stephen Moss [Interview]Julian Assange: the whistleblower, THE GUARDIAN (Wed, 14 Jul 2010, 00.05) [2]
  4.  Benedetto Vecchi, The rise and fall of Julian Assange, IL MANISFESTO (Apr. 13, 2019) [4]  
  5. Freedom of the press, WIKIPEDIA [5]   
  6. Press Freedom, NEWS MEDIA ASSOCIATION[6]
  7. Stephen J. Wermiel, Freedom of the Press: Challenges to this Pillar of Democracy, AMERICAN BAR ASSOCIATION( Mar. 26, 2019) [7]  
  8. Facebook–Cambridge Analytica data scandal, WIKIPEDIA (Jul. 28, 2021) [8]
  9.  Carole Cadwalladr, Fresh Cambridge Analytica leak ‘shows global manipulation is out of control’, THE GUARDIAN (Jan. 4, 2020) [9]
  10. Kieran Hardy and George Williams, Terrorist, traitor, or whistle-blower? Offences and protections in Australia for disclosing national security information, UNSW LAW JOURNAL [Vol 37(2)], 784, 784- 819 (2014) [10]

Giusy Lawani is an honours student at the University of Durham, where she is pursuing a degree in Oriental Studies with components in international relations. Giusy, a first-generation university student, has been an outspoken advocate of international peace, cooperation, and human rights. She previously volunteered for the United Nations Development Programme and worked as an intern at the United States Institute of Diplomacy and Human Rights. Proficient in English, Italian, Spanish, Japanese, and with elementary knowledge of French and Portuguese, she seeks to be a global leader and to provide the groundwork for the socio-economic development and equality of marginalised communities. Giusy is from Italy.

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