1. Department of Law Private power and new media: the case of the corporate suppression of WikiLeaks and its implications for the exercise of fundamental rights on the Internet Angela Daly PhD researcher, European University Institute 4 th International Conference on Information Law and Ethics University of Macedonia, Thessaloniki, Greece 20-21 May 2011 1

2. Department of Law Contents 1.WikiLeaks and US Embassy cables 2.The corporate response: a case of the invisible handshake? 3.Implications for online free expression 4.Legal recourse for WikiLeaks 5.Hackers: online avenging angels? 2

3. Department of Law 1. WikiLeaks and US Embassy cables Confidential correspondence between US State Dept and diplomatic missions around the world published by WikiLeaks in late 2010 A lot of criticism from US political class (government and opposition) Senator Joe Lieberman's 'request' Corporations providing various services to WikiLeaks cut off these services in the wake of this leak, citing reasons including breach of service terms and copyright infringement e.g. Amazon, PayPal, Visa, Mastercard, Apple 3

4. Department of Law 2. The corporate response: a case of the invisible handshake? Birnhack and Elkin-Koren: convergence of the interests of powerful private entities on the Internet and the State, producing the ‘ultimate threat’ to users’ online freedom Tableau Software explicitly gave request from Lieberman as part of reason for terminating relationship with WikiLeaks Amazon in close contact with Lieberman when deciding to cut off services to WikiLeaks; decision praised by Lieberman; Guardian claimed ‘heavy political pressure’ on Amazon from behind the scenes 4

5. Department of Law 3. Implications for online free speech Corporations are private actors –In the US, not only is First Amendment not enforceable against them, their conduct is also entitled to First Amendment protection –In Europe, perhaps some positive, horizontal effect of Art 10 ECHR, but in terms of enforceable right in these circumstances, not so robust and not strongly established Assuming free market, WikiLeaks can obtain these services from other providers – but what happens when monopoly/oligopoly? 5

6. Department of Law 4. Legal recourse for WikiLeaks Potential monopoly in Apple and oligopoly in payment processing firms – competition law? –Apple’s dominant position in market for apps – abuse in refusal to deal/supply? Economic harm suffered –Collective dominance abuse by payment firms? Unlikely to be able to demonstrate oligopolistic interdependence Contract and tort –(US) wrongful denial of service –(US) tortious interference with prospective economic advantage (may be difficult to show for non-profit entity such as WikiLeaks) –(Europe) remedies in national courts: ‘constitutionalisation’ of contract law in some systems may be advantageous 6

7. Department of Law 5. Hackers: online avenging angels? Attacks on websites from hackers, esp ‘Anonymous’ – Operation Avenge Assange, due to corporate attack on ‘Internet freedom’ Hackers are arbitrary – not accountable or reliable – ‘mob justice’ But – extra-legal means of expressing discontent at corporate infringements of free speech, and ‘punishing’ violators 7

8. Department of Law 6. Concluding remarks Current legal conceptions of free speech inadequate for Internet context, where expression depends on increasingly privatised sphere However, still possibility of jurisdiction- shopping for most favourable climate for free expression e.g. Iceland 8