WikiLeaks Controversy Prompts Statement From UN, OAS Rapporteurs

22 December 2010

Two leading international voices for freedom of information have issued a joint statement (In English and Spanish) reminding “states and other relevant actors to keep in mind” various international principles concerning the right of access to information.

The unusual statement was made Dec. 21 “in light of ongoing developments related to the release of diplomatic cables by the organization Wikileaks, and the publication of information contained in those cables by mainstream news organizations.”

The statement was made by United Nations Special Rapporteur on Freedom of Opinion and Expression, Frank LaRue, and the Inter-American Commission on Human Rights (IACHR) Special Rapporteur for Freedom of Expression, Catalina Botero Marino.

The rapporteurs listed six relevant principles, including “direct or indirect government interference upon any expression or information….”  In that vein, the statement continues: “Such illegitimate interference includes politically motivated legal cases brought against journalists and independent media, and blocking of websites and web domains on political grounds. Calls by public officials for illegitimate retributive action are not acceptable.”

Their first  point is: “The right to access information held by public authorities is a fundamental human right subject to a strict regime of exceptions.” After expanding on that principle, the rapporteurs say second that “the right of access to information should be subject to a narrowly tailored system of exceptions to protect overriding public and private interests such as national security and the rights and security of other persons.”

Third, they state, “Public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately classified information under their control.”

The statement continues:

Other individuals, including journalists, media workers and civil society representatives, who receive and disseminate classified information because they believe it is in the public interest, should not be subject to liability unless they committed fraud or another crime to obtain the information. In addition, government “whistleblowers” releasing information on violations of the law, on wrongdoing by public bodies, on a serious threat to health, safety or the environment, or on a breach of human rights or humanitarian law should be protected against legal, administrative or employment-related sanctions if they act in good faith. Any attempt to impose subsequent liability on those who disseminate classified information should be grounded in previously established laws enforced by impartial and independent legal systems with full respect for due process guarantees, including the right to appeal.

Fourth, the statement warns:

Direct or indirect government interference in or pressure exerted upon any expression or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law when it is aimed at influencing content. Such illegitimate interference includes politically motivated legal cases brought against journalists and independent media, and blocking of websites and web domains on political grounds. Calls by public officials for illegitimate retributive action are not acceptable.

Fifth, the authors say: “Filtering systems which are not end-user controlled – whether imposed by a government or commercial service provider – are a form of prior censorship and cannot be justified. Corporations that provide Internet services should make an effort to ensure that they respect the rights of their clients to use the Internet without arbitrary interference.”

The final point begins, “Self-regulatory mechanisms for journalists have played an important role in fostering greater awareness about how to report on and address difficult and controversial subjects.”

It continues:

Special journalistic responsibility is called for when reporting information from confidential sources that may affect valuable interests such as fundamental rights or the security of other persons. Ethical codes for journalists should therefore provide for an evaluation of the public interest in obtaining such information. Such codes can also provide useful guidance for new forms of communication and for new media organizations, which should likewise voluntarily adopt ethical best practices to ensure that the information made available is accurate, fairly presented and does not cause substantial harm to legally protected interests such as human rights.

 LaRue has previously spoken out on the matter in the media, arguing against prosecution of WikiLeaks.   He told ABC News, in part, “…  just the fact that the information is embarrassing information to a government does not make it subject to be blocked or filtered or reprisals to the director/founder of the service.”

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