The checklist required of any website seeking a certificate is pretty simple. Material on the site can only be modified by employees or agents of the media organization, primarily working from Sweden. The site’s name must be distinct from other registered outlets, and must maintain a more or less consistent design identity throughout its pages. The site must be able to designate a “responsible editor”—who must be over eighteen, not in bankruptcy, without a legal guardian, and a legal resident of Sweden. While complicated cases could take months, if everything is in order, Morast says a certificate can be approved in as little as a week upon payment of a 2,000 krona fee—about $200.
Traditional media companies already covered by the Freedom of the Press Act, but who want to ensure that their protections will extend to their websites, must undergo a registration process. 638 have already done so, according to Morast. An additional 649 stand-alone certificates have been issued to websites, most of which are unaffiliated with a traditional publisher. And WikiLeaks is not among them.
In fact, despite August press coverage in Sweden pointing out that the site had not taken this basic step, Morast told CJR that WikiLeaks had not even filed for a certificate.
“As far as I can see, I have no application for WikiLeaks registered,” says Morast. “And we’re a rather small authority, so I would know!”
(WikiLeaks, despite acknowledging CJR’s request for comment, did not respond. After Swedish coverage of the issue, WikiLeaks tweeted that “the article currently being spun about WikiLeaks source protection legalities is false,” but offered no further elaboration.)
Despite the ease with which most sites get granted certificates, there are some potential obstacles on WikiLeaks’s potential path to certification.
Assange has applied for Swedish residency. If he receives it, and WikiLeaks decides to seek a certificate, he could ask to be designated the site’s responsible editor. Otherwise, the site would have to find a Swedish resident to volunteer to take the hot seat. Under the Freedom of Press Act, it is usually only the responsible editor who can face legal action.
Perhaps more problematic is the law’s requirement that a site seeking a certificate do its work from Sweden.
Assange is an Australian citizen who, in the past, has worked on WikiLeaks from wherever his nomadic life has taken him. WikiLeaks’s corps of volunteers is famously international. The packaging and posting of the video depicting the death of civilians and Reuters personnel at the hands of a U.S. helicopter took place primarily in Iceland. The Afghanistan logs were posted from Britain.
“We do not only look at servers. We look at other things. Where is the editorial office? Is it in Sweden or is it somewhere else?” asks Morast. “Where do they take the editorial decisions? Since we demand that someone controls, where do they control this content from?”
Whether or not WikiLeaks will ever be a registered site fully entitled to the protection under Sweden’s Freedom of the Press Act, it’s clear that they are not yet and never have been.
“Obviously when they started putting their information on Swedish servers, they were not very well informed about Swedish law,” says Olsson. “It actually had no fundamental law protection at all. Anyone could look for the information, the sources could claim no legal protection, etcetera.”
Court cases involving constitutionally protected media, except in cases like defamation, can only be brought by the Chancellor of Justice, a senior government official who acts as something like an attorney general. These cases are usually conducted in a separate trial system, where a jury (a rarity under Swedish law) that has been given special instruction to err on the side of the press defendant, is empanelled. Any legal case seeking a WikiLeaks source, or the source of any other online writer without constitutional protection, would proceed in the normal criminal courts under normal criminal law.
But if WikiLeaks were eventually able to formally register, it’s not clear how protected they would be, in, for instance, their role in publishing the Afghanistan war logs. The Freedom of the Press Act has provisions that make it easier to ascertain a source in cases of classified information leaks.
“These provisions are meant to protect the secrets of Sweden, not foreign countries,” says Hultengard. But, pointing to the roughly 500 Swedish personnel serving in Afghanistan, he adds a caveat: “If for example, there were information about Swedish troops in these documents, I’d guess that kind of information might be allowed to lead to punishment against the informant and the publisher.”