Intellectual Property Law

Wikileaks, a Whistle-blower Website, and its Winning- First Amendment Argument

By IBLS Editor

The Wikileaks case exemplifies the legal proceedings of the information technology era. The case involves data protection laws in two continental regions (Europe and United States), American Freedom of Speech rights, bank secrecy rules, tax evasion, etc.  Wikileaks is a whistle-blower website whose hosting company and domain registrar are located in the United States territory (California).  Julius Bär Bank, a Swiss bank located in several European countries, requested a California Court to take down Wikileaks website because the site posted confidential data that had been stolen from the bank and compromised some bank?s customers.   The California court initially ordered to take down the website but last Friday the court reversed its decision and allowed the whistle-blower website back on the Net,? fearing its decision violated First Amendment rights.       

The case began when Wikileaks published information suggesting that some Julius Bär bank customers were involved in tax evasion and money laundering schemes in the Cayman Islands.   The documents incriminating Julius Bär customers were stolen by a bank employee in Liechtenstein.  Julius Bär initiated a legal action in California, where Wikileaks? hosting and registrar company are registered, requesting an injunctive relief to take down from the website the unlawful postings of stolen and forged bank records.  The bank alleges these posted documents are protected and prohibited from unauthorized publication under the U.S. and foreign consumer banking and privacy laws.  Further, Julius Bär denies the authenticity of these documents and considers them defamatory, according to the bank?s press release published on February 28th. 

The California court granted the injunctive relief and ordered the hosting and domain registrar company to block Wikileaks? site from the Internet. This decision included blocking the company from registering the domain name in any other domain registrar.   Yet, after a week and lengthy court hearing, the California court reversed its decision and allowed Wikileaks site back on the Internet.  "There are serious questions of prior restraint, possible violations of the First Amendment," the California District Court Judge said when reversing his prior decision.  Wikileaks and civil rights organizations deemed the Judge?s initial decision as unconstitutional ?prior restraint? on speech.  These groups argue the U.S. courts do not have the right to order the published material off the site.  Instead, the affected parties, including the bank, may seek monetary damages from Wikileaks. 

It is not certain now what turn this case will take.  The California court asked the Swiss bank to ?think? if the would like to continue with this litigation.  "When this genie gets out of the bottle, it's out for all purposes," the Judge said when referring to this case and the information to which they relate.  Further, the Judge was considering terminating the case for jurisdictional issues.  The court said this California court may not be the proper forum for a Swiss bank to sue Wikileaks.org, a website owned by an Australian citizen residing in Kenya, Africa.  

Again, the case is fascinating and should be closely followed by website owners because it enlightens on complex Internet law issues.  First, hosting and domain name registration forum shopping for websites.  Non-US citizens intending to hold ?whistle-blower? or controversial websites definitely will favor US hosting and domain name registrar companies physically located in US soil.  First Amendment or Freedom of Speech rights are zealously protected in the US more than in any other country in the world.  Since jurisdictional Internet tendencies show, a server or hosting company provides jurisdiction, then those websites access US courts and rights by locating their hosting and server in the US.  Interesting issues to be analyzed by the US government since it is a well settled principle of law that constitutional rights are granted to US citizens or those residing in the US only. Here, we have a European plaintiff, an Australian defendant living in Africa but with a domain name registered in the U.S., and financial data related to customers with possibly several nationalities.

Thus, the main jurisdictional question in this case and any subsequent and related Internet case is: Does a foreigner (company or individual) living abroad enjoys US constitutional rights just by having its holding and domain registration in the US?  This is a good question for the US government and judicial authorities knowing Global nature of the Internet and the sought-after free speech law of the United States.  

Full post as published by IBLS Internet Law Blog on March 03, 2008 (boomark / email).