UPDATE: More Clues Point Towards Guardian Gag Order in Assange Case

The following entry is a continuation of an earlier entry on this blog: “The Guardian comment section experience” and is a contribution from Bella Magnani.

The UK’s status as libel capital of the world and the use of celebrity gagging orders have been making headlines recently, with many commentators moaning that the latter was hardly the most important thing to be worried about when it came to freedom of the press. A curious, little noticed event in a humble corner of the blogosphere may well illustrate their point.

On 25 February this year a comment was posted to WL Central complaining that the Guardian was moderating away readers’ comments on the Assange case. It contained an email from the Guardian indicating that readers’ links to a particular Swedish blog “potentially pose legal risk to the Guardian”. What made this significant, as explained in this legal overview of UK libel laws governing online publication, is that the defence of “innocent dissemination” protects publishers from liability for material they neither authored nor physically published themselves (i.e. readers’ comments) and could not reasonably have known to be defamatory: “However, they will have a responsibility once they are put on notice of any libellous material as then they will have control over it.” In practice, therefore, it’s only when such legal notifications come through the door that this type of material gets taken down.

The following day, 26 February, this story was picked up and republished on the Rixstep website and on a pro-Assange blog by the Julian Assange Fanciers Guild called “Fuck Yeah, Julian Assange” (FYJA for short). From there, it was picked up by feeds to other blog sites and attracted enough attention to hover around the 4th or 5th position in Google search results for the term “Fuck Yeah Julian Assange”. And so it remained, even beyond the sudden and unexpected demise of the FYJA on 10 April when the owner of the blog, despite pleas it should be left up as an archive, deleted the entire tumblr, an event much mourned within the Wikileaks Twitter community for the welcome spot of light-hearted humour it had provided. Someone else picked up the mantle and FYJA Version 2 continued; the world rolled on.

Even though a click-through from Google search results would now result in a Page Not Found, the title of this particular page – Possible Gag Order on the Guardian in Assange Case? – obviously piqued enough interest and clicks to maintain its relatively high position in the search results for the site. Then, for one day in early May, it showed up as the top search result for FYJA, and then… it disappeared entirely. All trace of it vanished, not only from the main pages of Google search results, but also from the Google store of cached pages for the site (more on this later), through which access to it had still been possible.

Yet remnants of the original blog page remain on the internet, like scattered ghosts, in feeds to other sites, such as this archive page at The #Wikileaks Daily (scroll down to the Stories section), showing that it had indeed existed at one time, although the link will now lead nowhere.

Interestingly, there is an intriguing connection between the FYJA story and the one that appears immediately above it on that archive page – “Assange goes off deep end – blaming Jews and Guardian in Private Eye” by James Ball – which can be found on the 25 February FYJA page (whoever removed the Gag Order page from Google seems to have missed that the conversation about it had actually started two days earlier). There, one commentator states that she has sent an email to Private Eye about the Guardian censorship issue (editors note: link no longer working at the time of publishing, but the screengrab can be viewed below).

As Ian Hislop helpfully emailed Greg Mitchell at The Nation (see the entry at 8.55) with the exact time that Private Eye went to print, we can surmise there were at least two or three days in which to assemble a story – “as much as [Hislop] could remember” – about an off-the-record telephone conversation with Assange a couple of weeks previously. Not conclusive evidence of a Guardian/Private Eye ‘conspiracy’ perhaps, but it’s still an interesting detail to add to the back-and-forth of arguments and counterarguments set out by Mitchell.

It wouldn’t be the first time, of course, that Private Eye has come to the rescue of the Guardian in legal matters, as Alan Rusbridger gratefully noted in a lengthy 2008 article for the New York Review of Books detailing the eye-watering costs of fighting a libel action brought against it by Tesco (the case was dropped when Private Eye dug up related information). He thanked them again for that one in his excellent Anthony Sampson lecture on libel law reform earlier this month. In fact, there’s a long history of collaboration between the two media outlets – from sharing a writer who specialises in tax affairs during the Guardian’s Tax Gap campaign (incidentally, that campaign was another instance where readers complained their comments and links were being heavily moderated by the newspaper) to David Leigh winning the Paul Foot Award (co-sponsored by Private Eye and the Guardian) for investigative journalism in 2007. Of course, there’s nothing untoward in such allegiances and friendships across the establishment media – they are only to be expected – and it would be ridiculous to characterise them as in any way ‘conspiratorial’; nevertheless, it would be rather shabby if such friendships had formed the basis of a deliberate attempt to smear someone.

Back to the FYJA blog page. An analysis of Google’s cache store for the V.1 tumblr blog, dated 5 May (see screengrabs: B, C, D, E, and F ) (Editor’s note: at the time of publishing, only three items remain for the search performed.) reveals some odd anomalies: sometimes comments on old pages are fully accessible, despite FYJA V.1 having been subsequently deleted; sometimes Discus comments are showing but not accessible; sometimes they are missing entirely. It appears that there’s been some selective pruning of pages subsequent to the 26 February page, but it’s hard to tell for certain exactly what is missing. This raises more questions. Does Google simply remove specific URLs from its cache store at the request of parties other than a site’s owner on request, or does this need to be court-ordered? And, if so, who would spend good money to do that in this instance? As the original comment containing the Guardian email can still be viewed at WL Central and on the Rixstep website, the only effect of removing this particular page from public view would seem to be to remove the comments of forum members underneath the material that it had reproduced from WL Central.

So, what were the good ladies of the Fanciers Guild discussing that day that might have been so contentious? Well, I decided to contact a few of them to find out (God bless Twitter) and it seems they were mostly talking about Karl Rove – articles about him on the Professors Blogg site (strangely silent since 18 April); his involvement in past scandals, such as the outing of Valerie Plame or the Michael Connell story; his close association with Billy McCormac and Fredrik Andersson of Prime PR (and theirs with Anna Ardin); Prime’s hand in the #prataomdet/Talk About It ‘grassroots’ campaign, which punts the idea that silent nonconsent to sex is common in Sweden (the Swedish equivalent, presumably, of Thinking of England); Rove’s political consultancy work for Swedish Prime Minister Fredrik Reinfeldt and his (and Prime’s) part in Reinfeldt’s successful re-election campaign; most of all, whether or not Karl Rove was at the annual Harpsund party at the Swedish PM’s country residence on 20 August last year, where Niklas Svensson and colleagues from Expressen were when they got the leak that a police report had been filed against Assange. It’s known Foreign Minister Carl Bildt was at the party, as was an official from Beatrice Ask’s Justice Ministry who is married to Maria Kjellstrand, the prosecutor who illegally confirmed the story to the press – but, alas, the full guest list has yet to surface.

I have no idea whether these matters were the intended target of the Google take-down – nor who was behind that take-down – they are just some points participants in the FYJA forum remember discussing. There is no doubt, however, that someone used some fairly sophisticated site analysis tools to take a very close look at the FYJA blog on 28 April and 29 April (see screengrabs G and H, respectively), ( editors note: and here is a link to the same page as it looks now) shortly before the Gag Order page from that site disappeared from the internet.

For anyone who thinks this is all a little fanciful or far-fetched, here’s another example of material being removed from the record in ways that outfox retrieval from Google’s cache store.  This one concerns the removal from Swedish newspaper Dagens Nyheter of comments made by Marianne Ny that British and Swedish law prevented her from interviewing Assange in England.

In a recent interview with e-flux Journal, Julian Assange spoke of three types of history (he uses the term interchangeably with “historical record”): type one is everyday knowledge subsidised by an industrial economy – how to build a pump, how to create steel, how to cook, etc – that keeps such information around and makes use of it; type two is information already in the intellectual record but no longer having an economy behind it, some of it slowly vanishing – books go out of print, and so on – but no one is actively trying to destroy it. “…And then there is the type-three information that is the focus of my attention now. This is the information that people are actively working to prevent from entering into the record. Type-three information is suppressed before publication or after publication. If type three information is spread around, there are active attempts to take it out of circulation.”

Following the furore surrounding the recent Twitter disclosure of supposed superinjunctions (some swiftly denied by the people named), Geoffrey Robertson QC argued that things have gone badly wrong with UK privacy law, which – in its current form – is being used to impose prior restraint on newspapers to protect “celebrities threatened by ‘kiss and sell’ stories from discarded lovers as well, it is said, as stories of some public import.” That last, rather pointed, note was echoed by Padraig Reidy, news editor of Index on Censorship, who pointed out that privacy injunctions weren’t the only form of legal gag having a chilling effect on the press: “If privacy vs freedom of expression issues are simply reduced to who is sleeping with whom, we lose sight of the more important cases where there is a real need for whistle-blowing, and acceptable breaches of privacy where there is a strong public interest.” Mark Stephens, media specialist lawyer at Finers Stephens Innocent, for his part simply suggested that whoever was responsible for the Twitter feed should pack their toothbrush for a stay in Pentonville jail: “Their emails used to upload this information are being traced, I imagine, as we speak.”

A Screengrab add-on for Firefox browsers can be downloaded here.

Final editor’s note: indeed an impressively quick removal of all traces of a blog. Of the original FYJA V1.0  only three items remain in cache (all dated April 6) right now. Will they too be gone tomorrow?

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