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Oct 8, 2012

PM has little to fear from Assange’s new legal threat

Julian Assange has threatened legal action against Julia Gillard for her 2010 claims that WikiLeaks is "illegal". But experts say any case is highly unlikely to succeed.

Julian Assange’s threat to sue Prime Minister Julia Gillard for defamation could be nothing more than a publicity stunt, with experts telling Crikey the WikiLeaks founder may have left it too late to bring legal action.

Assange told activist group GetUp! he could sue Gillard for comments made in 2010, when she labelled the WikiLeaks publication of classified US diplomatic cables as “illegal” and “grossly irresponsible”. He says he has hired lawyers in Sydney and plans to bring the case to court.

Defamation expert Mark Pearson reckons it’s “poor form” by Assange. Pearson, author of Blogging and Tweeting Without Getting Sued, told Crikey: “I think it’s particularly out of order for journalists and free expression advocates to use defamation as a means of chilling debate.”

Pearson and other defamation experts say the case is unlikely to be heard though, because under Australian law a defamation suit must be brought within 12 months of the publication of the defamatory statement.

Assange told GetUp!’s Rohan Wenn he thought he would be able to gain an extension on the 12-month period because of his house arrest in the UK and confinement to the Ecuadorian embassy in London. Cass Matthews, a media law expert at the University of Melbourne, says that will be “difficult” and will depend on Assange’s circumstances within the year following the PM’s statement.

Pearson agrees, saying the issue hasn’t been tested in Australia before. The provision is designed for cases where it may take time to find the source of a rumour, which is not the case with Assange. “The usual criteria is when the comments have only just been brought to the attention of the plaintiff,” according to Pearson.

Professor Andrew Kenyon, director of the Centre of Media and Communications Law, told Crikey repeated publication of the comments could be an avenue for gaining an extension (Assange has said he won’t sue any media outlet that has republished Gillard’s comment).

Wenn conducted the interview with Assange. “Julian made it perfectly clear that his beef is with the Prime Minister and not with any media outlets,” he told Crikey.

If Assange were to gain an extension in order to bring the case, law experts believe proving the statement is defamatory would be simple, but Gillard may have defences available to her.

Matthews believes qualified privilege would be the strongest. “She would need to prove that she has acted reasonably — that would mean that she has researched what she is saying. If that was simply a mistake or it was not based on proper material then she would not have that defence,” she said.

Pearson says it’s unlikely the PM would ever need to argue her case. “People threaten defamation action but very few of those threats actually culminate in action and often the threat is a publicity stunt,” he said.

Assange has high hopes for the case, according to Wenn, with discussions taking place in London for more than 12 months: “He thinks that once the Prime Minister has to acknowledge that WikiLeaks hasn’t done anything illegal, then it’s like ‘why aren’t you helping the guy?'”

Pearson questioned Assange’s motivation for threatening legal action when he faces more pressing legal issues: “I really think it’s a distraction from the main problems he faces. You really think he would be putting all his efforts into the defence of the Swedish allegations and over concerns of his extradition to the US.”

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21 comments

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21 thoughts on “PM has little to fear from Assange’s new legal threat

  1. Dion Giles

    The lie about Assange breaking the law was Gillard’s first major porkie. Not being able to fulfill election promises as circumstances change is NOT lying. For REAL lying by a PM, how about lying our country into war in 2003? That caps anything any other PM has ever done in the lie department.

  2. paul walter

    The PM was deplorable for describing Assange’s citizen journalist project using such “loaded” and consciously deceitful terminology.
    Perhaps, in the wake of Alan Jones’ equally vicious personal attack on her, she may now understand better Julian Assange’s response,even to the point of ceasing the cowardice of herself and her government when it comes to fulfillingits requirements towards Assange.
    I realise the article is attempting to be “controversial, in effect, “trolling”.
    But it should be remembered that part of the reason Assange cannot pursue his rights is down the Gillard government’s supine cowardice in covertly representing the sinister, anti democratic agenda of a foreign power rather the legiimate interests of an Australian citizen overseas.
    We and our country are all weakened, for this.

  3. crakeka

    Mark Pearson is who exactly that we should consider his opinion of “poor form” on the part of Assange a valid criticism?
    Is MasterCard Australia still refusing to transfer card holders funds to Wikileaks at their own request?
    Are not such funds the lifeblood of Wikileaks? And is Australia still an independent democracy, not a state of the USA?
    Is anyone defending Assange’s civil liberties and rights as a citizen immediately of interest to ASIO?

  4. Jimmy

    This is nothing more than another stunt from this man.

    Paul Walter – “But it should be remembered that part of the reason Assange cannot pursue his rights is down the Gillard government’s supine cowardice in covertly representing the sinister, anti democratic agenda of a foreign power rather the legiimate interests of an Australian citizen overseas.” Please explain? Do you know what the govt has or hasn’t done? What would you have the govt do?
    If you want the govt to seek assurances that the Us won’t prosecute why? If the US bel ieves it can successfull y prosecute a case against Assange why should the Australian govt interfere?

  5. crakeka

    Hi Jimmy,
    Because Assange is an Australian citizen, because Wikileaks has broken no Australian or International law and because Wiklieaks is not based in the US.
    The US does not allow members of its own forces to be prosecuted by the laws of the countries in which they have been deployed. Even accused rapists from US military personnel cannot be prosecuted by local authorities.

  6. Jimmy

    Crakeka – “Because Assange is an Australian citizen, because Wikileaks has broken no Australian or International law and because Wiklieaks is not based in the US.” Hence he hasn’t been charged.
    And I am not doubting your obvious legal knowledge but again if you statement that he jasn’t broken a law turns out to be false (ie if he ahs done more than just publish documents) and the US can mount a case why shouldn’t he face charges.

    “Even accused rapists from US military personnel cannot be prosecuted by local authorities” And do you think that is a fair outcome? And if the US rap ist wasn’t a member of the military would they intervene then?

    And the govt has offered and provided assistance to Assange

  7. Hugh (Charlie) McColl

    If Julia Gillard had not said those particular words but instead had uttered some inane drivel and then done nothing, what else would we have the Australian government do? Most angry commentators are pissed off because our government immediately joined the ongoing Coalition of the Willing and others without considering or needing to consider anything else. A ratbag is a ratbag as far as they are concerned – it doesn’t matter whether he’s at home or abroad. I don’t think it matters what the Australian government does. He is safe where he is and has numerous legal and diplomatic options, mainly because of the unique circumstances of his situation. His brawl is with Sweden, he’s in Britain, he has time on his side and no one is being nasty to him. Certainly not as nasty as plenty would like to be. And he still has plenty of dirt, even paydirt, to play around with in the sandpit. He can’t ever have thought this would be easy?

  8. zut alors

    It’s vital for Assange to highlight not only the PM’s defamatory comment but the ongoing farce by the PM, Carr and Roxon regarding alleged consular assistance they claim he’s receiving.

    Assange says he hasn’t had a visit from consular staff since 2010. Meantime Australian governments fall over themselves to help accused drug dealers on foreign soil. It’s time for our government to stop willfully misleading us on this matter.

  9. Liz45

    @crekeka – I agree with you! I’m appalled by the Govt’s treatment of Assange.

    I disagree with you Jimmy! Why haven’t other media outlets, editors etc been charged in the US? Like the Guardian, NYT, Washington Post etc. The BBC, ABC, SBS, Murdoch papers etc in Australia? I don’t understand, and nobody has provided any plausible explanation to this date!