Julian Assange, the Price Some Pay for the Truth

The plight of whistleblowers, how does the law view this thankless profession? 

Whistleblowers -a term frequently thrown about in news headlines. Individuals who were often virtually unheard of previously, seemingly becoming overnight sensations. But what exactly is a ‘whistleblower’? Simply put, it is a worker who exposes information about wrongdoings. You may be wondering, why those who fit into such a broad and simple bracket merit such scrutiny?

Whistleblowers may allege misconduct by their employer, which violates public law or harms a considerable number of people. This could range from exposing unethical practice, fraud or corruption in private companies to illegal acts committed by public bodies. As such, the sheer scope of what may be unmasked by a whistleblower, makes them highly noteworthy at times.

In their pursuit for the truth, some of these individuals etch themselves into the history books, acting as the catalyst for monumental change.

Yet not all whistleblowers have to work on such a grand scale. Anyone may be a whistleblower, it requires someone with the determination to bring wrongdoing to light.

The right to ‘whistle blow’ is intrinsically linked to freedom of expression, as engaging in this act requires the ability to say what is necessary, regardless of who may disapprove. 

The recent conclusion to the story of Julian Assange, demonstrates the challenges that come with whistleblowing. The Australian activist founded the infamous ‘WikiLeaks’ organisation, which shocked the world in 2010 when it released footage showing American soldiers shooting dead 18 civilians in Iraq. Alongside this, Wikileaks posted classified US military documents on the Afghan and Iraq wars, prompting outrage as questions regarding American conduct abroad intensified. The non-profit media organisation was then blocked from accessing donations, putting its survival in jeopardy. 

Later that year, Swedish prosecutors issued an arrest warrant for Assange in relation to two separate sexual assault allegations, which he described as ‘without basis’ which were notably dropped in 2019. In December 2010, he was arrested in London and released on bail before the UK Supreme Court held that Assange should be extradited to Sweden to face these allegations. This prompted him to find refuge in the Ecuadorian embassy where he was officially granted asylum, leading to the bizarre scenario where Assange addressed the media from the balcony of the embassy. Despite a UN panel ruling that he had been ‘arbitrarily detained’ by UK and Swedish authorities, the US justice department covertly filed charges against Assange in 2018, before he was detained for ‘failing to surrender to the court’. He was subsequently sentenced to 50 weeks in jail for breaching his bail conditions, as federal grand jury in the US charge him with 18 counts of espionage and computer hacking.  

A lengthy legal battle ensued, as Assange’s lawyers desperately sought to prevent his extradition to the US, where he may have faced the death penalty. In fact, Assange initially convinced the courts that he would be at suicide risk due to the given US prison conditions, although subsequently, Assange was denied permission to appeal by the Supreme Court in 2022, and again in June 2023. The defining moment came in March of 2024, as the UK High Court granted Assange leave to appeal. The reasoning behind this decision demonstrates key aspects of the law surrounding whistleblowing. It was argued that the proposed extradition would have been incompatible with Article 10 of the European Convention on Human Rights. The Court disagreed, pointing to the First Amendment of the US Constitution, protecting freedom of expression, as an adequate defence. However, Assange’s nationality played a key role, since there was a genuine concern that he would be prejudiced by reason of nationality. This fear was fuelled by the comments of Mike Pompeo, and more importantly, Assistant US Attorney and Federal Prosecutor Gordon Kromberg who stated that Assange may not be able to rely on the First Amendment as he was not a US citizen. The US found itself in a tough position. It needed to provide full assurance that a non-US citizen may rely on the First Amendment to have Assange extradited, but such an assurance would have required illegitimately removing this entirely plausible argument from the US prosecution team. The US could either satisfy the difficult required conditions to have Assange extradited, allowing him a significant advantage in Court or reach a different settlement. They chose the latter, as Assange signed a plea agreement with the US, pleading guilty to a single count of breaching the Espionage Act and was allowed to walk free and return home to Australia.  

The story of Julian Assange is a perfect example of the risks which accompany the act of whistleblowing. Over the course of this lengthy saga, Assange suffered immensely during his time in the Ecuadorian embassy as described by Nils Melzer, the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He suffered from chronic stress caused by sensory deprivation, social isolation, and the lack of adequate medical care. A report from the UN Working Group on Arbitrary Detention noted that the Swedish case against Assange remained in its initial ‘preliminary investigation’ stage for longer than five years. This was seen as incompatible with the presumption of innocence. Melzer stated that this case highlighted ‘how fragile the rule of law is in the western world. ... if we allow telling the truth about government misconduct to become a crime, the powerful will be left completely unchallenged’. 

Whistleblowing is an inherent trade-off between loyalty and fairness.

Although it may be viewed from a certain perspective as the ultimate breach of trust, on the other hand it represents an act of justice, serving to right a wrong. The consequence of such an act often benefits the wider public, while negative effects usually fall on the whistleblower themselves. An analysis of all cases of corporate fraud from 1996 to 2004 found that in ‘82% of cases with named employees, the individual alleges that they were fired, quit under duress, or had significantly altered responsibilities as a result of bringing the fraud to light’. 

The law has recognised the importance of whistleblowing as seen in legislation across the globe. In England and Wales, the Public Interest Disclosure Act 1998 (PIDA) protects whistleblowers from unfair treatment or job loss. It protects employees, trainees, agency workers and members of a limited liability partnership. Northern Ireland has its own separate but similar legislation on this matter, the Public Interest Disclosure (Northern Ireland) Order 1998. Although PIDA was hailed for its aspects by many other nations there are areas where modifications to the law have been requested. This includes criminalising the act of threatening detriment to a worker for reporting a concern and adopting the Irish approach of allowing citizens who suffer detriment due to association or suspected association with a whistleblower to have a right of action in tort. Such changes would encourage those who know of wrongdoing to expose such acts with lessened fear of retribution. A world where people are not afraid to unveil the truth is surely worth pursuing.