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.”
WikiLeaks has also implausibly asserted that authorities in other countries could face criminal action in Sweden for investigating the source of a WikiLeaks document. In 2009, when an Australian government minister threatened to investigate the source behind a WikiLeaks-published document, the site issued a press release claiming that they had “published from Sweden so as to derive maximum benefit from this legal protection,” and threatened to refer Australians looking for their source to Swedish authorities for prosecution and extradition under the Freedom of the Press Act’s provisions.
There are no known cases of WikiLeaks making such a referral, and Swedish media law experts scoff at the concept—only Swedish authorities are forbidden from looking for a source under Sweden’s constitution. Private companies and foreign governments are not.
At most, according to Olsson, a journalist working for a constitutionally protected outlet could expect to have Swedish authorities refuse to cooperate in an extradition request for themselves or their source from Sweden.
“Swedish authorities would have to deny, to say no,” says Olsson. “Because he’s not obliged to tell his source—he’s not even allowed to tell his source in Sweden—and we can’t certainly send him somewhere else where he had to.”
On August 14, Aftonbladet, a tabloid and Sweden’s largest circulation paper, announced Assange would contribute columns every two months. Jan Helin, the paper’s editor, did not respond to requests for comment on the legal implications of the arrangement, but it should mean that Assange has a strong case that he and his sources are henceforth under the paper’s constitutional wing.
Other WikiLeaks volunteers and sources will have to wait. If WikiLeaks proper does apply for and gain certification, whatever protection they’ve gained under the constitutional Freedom of the Press Act is unlikely be retroactive, leaving years worth of leakers who have been exposed to WikiLeaks rhetoric about the strength of Swedish law without its full protection.
Swedish legal experts aren’t even certain if the issue of retroactivity has ever come up before—simply because a Swedish publisher would know to register.