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Feb. 11, 2010, 9 a.m.

Iceland aims to become an offshore haven for journalists and leakers

On Tuesday, the Icelandic parliament is expected to introduce a measure aimed at making the country an international center for investigative journalism publishing, by passing the strongest combination of source protection, freedom of speech, and libel-tourism prevention laws in the world.

Supporters of the proposal say the move would make Iceland an “offshore publishing center” for free speech, analogous to the offshore financial havens that allow corporations to hide capital from authorities. Could global news organizations with a home office in Reykjavík soon be as common as Delaware corporations or Cayman Islands assets?

“This is a legislative package to create a haven for freedom of expression,” Icelandic member of parliament Birgitta Jónsdóttir confirmed to me, saying that a proposal for comprehensive media law reform will be filed in parliament on Tuesday, and that whistle-blowing specialists Wikileaks has been involved in drafting it. There have been persistent hints of an Icelandic media move in recent weeks, including tweets from Wikileaks and a cryptic message from the newly created @icelandmedia Twitter account.

The text of the proposal, called the Icelandic Modern Media Initiative, is not yet public, but the most detailed evidence comes from a video of a talk by Julian Assange and Daniel Schmitt of Wikileaks, given at the Chaos Communications Congress hacker conference in Berlin on Dec. 27:

We could just say we’re taking the source protection laws from Sweden, for example…we could take the First Amendment from the United States, we could take Belgian protection laws for journalists, and we could all pack these together in one bundle, and make it fit for the first jurisdiction that offers the necessities of an information society.

Schmitt termed the idea “a Switzerland of bits.” He also mentions that “lawyers in Iceland are working on a bill that will be introduced on the 26th of January,” although it appears the date of introduction has been pushed back to next week. And he cites Iceland as a path to eventually spreading similar laws throughout the EU

A safe haven for leakers and investigators

Jónsdóttir explained that the proposal does not contain final legislation, but would instruct the government to create a package of laws that enhance journalistic freedoms in specific ways. According to an email from Assange (which was then leaked, ironically enough) the amendments would cover source protection, whistleblower protection, immunity for ISPs and other carriers, freedom of information requests, and strong limits on prior restraint. They would also provide protection against libel judgements from other jurisdictions, much as the United States may soon do with the Free Speech Protection Act of 2009.

This package was designed by a working group including representatives from government, civil society, and Wikileaks, which has considerable experience in international media law and censorship issues. The site accepts anonymous submissions of material of public interest, and publishes them without question. Since its its inception in Jan. 2007, Wikileaks has released thousands of sensitive documents, including an investigation of extra-judicial killings in Kenya and more than 500,000 intercepted pager messages from New York on the morning of September 11, 2001. When The Guardian obtained documents alleging the dumping of 400 tons of toxic waste on behalf of global commodities trader Trafigura, they were slapped with a “super-injunction” which prevented them from disclosing not only the contents of the documents, but the existence of the gag order. Wikileaks published the material three days later. Wikileaks is currently down for a fundraising drive but says it will resume operation shortly.

The site intersected with Iceland last summer. The country suffered so severely from the 2008 collapse of its banks that riots in the streets forced the election of a new government in April. Iceland is still crippled with a debt of more than five times yearly GDP, but the banks managed to keep their creditors confidential until August when a national TV broadcaster obtained the list. The newsroom was barred from airing the story at the last minute, but in a stroke of genius, they ran the URL for the Wikileaks disclosure instead. This was “very popular, and very needed, in order for people to understand what was going on inside the banks, because obviously we have to carry the bailout,” Jónsdóttir told me.

A country in the mood for openness

Riding on that popularity, Assange and Schmitt came to Iceland early December and floated their idea for a journalism publishing haven on a talk show, then in a more detailed presentation at Reykjavík University. Jónsdóttir and others were impressed. “The main purpose is to prevent something like our financial crisis from taking place again,” said member of parliament Lilja Mósesdóttir, noting that Iceland’s financiers had great influence over the Icelandic media. “They were manipulating the news.”

Wikileaks has succeeded in bringing sensitive materials to light through a combination of technical and legal means. Submissions are anonymized and routed through countries with comprehensive journalistic source protection laws. Last year, I remarked to Assange that Wikileaks was lucky to have registered its domain name in California, where a 2008 lawsuit brought by an aggrieved Swiss bank against the site’s domain name registrar was likely to be dismissed. (It later was, with legal briefs of support filed by several major American news organizations.) Assange replied that it was no accident, and that Wikileaks has yet to lose a lawsuit.

That legal resiliency is in some ways the reverse of “libel tourism,” where plaintiffs file suit in a jurisdiction likely to give a favorable result. One famous case involves a suit filed in London by a Saudi billionaire against the Wall Street Journal Europe in Brussels, for a story originally published in the Wall Street Journal in New York. Some courts have ruled that placing an article online counts as publication if it is accessible from their jurisdiction, which would mean that a web story could be declared libelous anywhere in the world. In an Feb. 7 email, Assange wrote:

We can’t expect everyone to go through the extraordinary efforts [that] we do. Large newspapers are routinely censored by legal costs…It is time this stopped. It is time a country said, enough is enough, justice must be seen, history must be preserved, and we will give shelter from the storm.

Jónsdóttir said that the proposal already has the backing of the leaders of the Left-Green Movement, the Social Democratic Alliance, and the Citizen Movement, which she speaks for. This represents a total of 38 of Iceland’s 63 parliamentary seats, with only a simple majority needed to pass. She said she expects a vote within a month, and that if all goes well the final laws could be drafted and passed within six months. But the situation is fluid — she also said “the government might be on the verge of dissolving,” due to an upcoming referendum on debt restructuring with UK and Dutch banks.

POSTED     Feb. 11, 2010, 9 a.m.
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