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A Swedish Shield, Unraised

How much protection can WikiLeaks offer?
September 2, 2010

Julian Assange, the public face of the secret-sharing site WikiLeaks, has recently been spending a lot of time in Sweden. And given a recent investigation of rape charges against him, he may not be going anywhere else for awhile.

While that courtroom drama plays out, another Swedish legal issue—one that could have great consequences for WikiLeaks’s reputation and ability to protect its sources—is looming.

WikiLeaks has long advertised that portions of its operations, especially its key submission and publication servers, are based in Sweden in order to take advantage of the country’s constitutionally established source protection laws. But Swedish legal experts say that, by not registering with the state, WikiLeaks has not ensured it is entitled to the full force of the laws—and beyond that, that the site has misstated their strength and application.

Swedish laws around source protection are described in the Freedom of the Press Act and the Law on Freedom of Expression, two of the nation’s four fundamental laws, which together make up the country’s constitution. As in the U.S. constitution, no other law or act of the state is allowed to infringe on the rights described in fundamental laws.

These laws forbid what is routine in the United States. For example, government entities cannot investigate or even ask about the identity of an information leaker presumed to be on their staff, unless the leaker is suspected of a national security crime like treason, or of knowingly leaking a properly classified document.

Swedish law also offers an unusual protection to sources in and outside of government. Unlike reporter’s shield laws—which, in the United States, offer journalists some protection from refusing to comply with a subpoena—Sweden’s Freedom of the Press Act, whose origins trace back to 1766, actively forbids journalists to reveal a confidential source.

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“It’s a rather old tradition of making sure that people can trust the press,” says Anders Olsson, a Swedish journalist who specializes in free speech and media law issues. “The reasoning behind it is to see that secrets that are kept in society that shouldn’t be secrets are actually dragged in the open.”

It’s very rare for journalists to fall penalty for revealing a confidential source. Swedish journalists feel the same code of honor against divulging a source as any of their international colleagues, and know their careers would likely be over if they did. The few prosecutions that are brought are usually the result of mistakes or miscommunication, perhaps where one member of a news team didn’t realize that a certain source had only come forward confidentially. A jail sentence of up to a year is possible. In practice, only fines are assessed.

And there are exceptions. For instance, in cases of high treason, or where a source intentionally disclosed classified information, journalists can be required to reveal their sources, thereby waiving any legal penalty that would otherwise apply to the reporter. (Of course, any reporter could personally choose to face sentencing rather than divulge a source.)

In addition to the journalist’s obligation not to breach confidentiality, prosecutors and other government actors are also restricted against making inquires into the identity of a source, except in extreme cases.

“In most cases, you have the right as a journalist, and are obliged as a journalist, to protect your sources,” says Arne König, the vice president of the Swedish Union of Journalists. “It has been a system that has been really recognized.”

These protections apply when the journalist involved works for a constitutionally protected outlet. The Freedom of Press Act originated before the age of broadcast media, so only regularly published printed periodicals are automatically covered. (The law’s Swedish name, Tryckfrihetsförordningen, is more literally translated as the Freedom to Print Act.)

Various amendments, revisions, and clarifying regulations have extended the act’s obligations and protections to properly registered radio, television, and websites. (The later are, somewhat quaintly, sometimes referred to as “databases.’)

But websites and other electronic media aren’t, like their print equivalents, automatically covered under the act, according to Kerstin Morast, the head of the Swedish Radio and Television Authority’s licensing division, which issues certificates and registrations to electronic outlets seeking constitutional protection.

“This is a strictly formal procedure. They are not looking at content—that would be close to censorship,” says Per Hultengard, legal advisor to the Swedish Media Publishers’ Association. “It’s pretty automatic.”

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.”

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.

Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.