The Wikileaks “Cablegate” scandal has brought sudden and extensive transparency to the area of international diplomacy. It raises, amongst others, the question of whether those who published the information acted legally or ethically. There is, however, another way of looking at this question: did those who originally failed to make this information public act legally or ethically?
The right of access to information, a right recognised in international law and enshrined in over 80 national access to information laws, gives us as members of the public the right to know what our governments are doing. This includes our right to know what governments do at the national level but also what our governments do when representing us at the international level. We have a right to hold our elected representatives accountable for all their actions, including when they represent us internationally. And accountability requires information.
Requests for information can only be refused if disclosure of the information would cause demonstrable harm to legitimate interests such as national security or personal privacy. Only if serious harm would occur is secrecy justified. Public embarrassment is not serious harm.
Many of the documents in the latest Wikileaks disclosure show nothing more than the double-dealing of governments behind the scenes. Governments have no «right» to speak with forked tongues, saying one thing to the public and another behind our backs.
The core principle of the right to know is that government officials work on behalf of citizens, and that transparency is the rule and secrecy the exception. However, some government representatives claim that «governments have a right to talk to each other in secret» and that this is the inherent right of sovereign states. This reflects outdated thinking better suited to the 19th Century. In the early 21st Century the interests of sovereign nations are those of its citizens, who have a right to know what is being said and done in their name.
Hillary Clinton, amongst others, has deemed this publication a “theft” and an “attack on the international community”. The accusations against Julian Assange, founder of Wikileaks, and the media outlets who published this information seem completely unjustified. Firstly, Wikileaks is a mere receptor of this information, which was only published following professional journalistic criteria and taking into account the public interest in the information. Secondly, the media outlets that later published this information are not acting illegally either according to European Court of Human Rights jurisprudence, since once the information is in the public domain, it can be freely circulated. In addition, the stories were only published after a number of reputable journalists used their professional judgment to decide whether or not serious harm would occur from disclosing the cables.
Again, the wrong question is being asked. Not who committed a crime by leaking the information but what crimes might it reveal. If the leaked documents reveal that governments have been spying on international organisations, or that states are involved in torture, these are the real crimes. In the case of Spain, nobody has demanded explanations from those who attempted to halt the course of justice during the Couso case, for example; or from those who illegally transported prisoners to Guantanamo via an airbase in southern Spain; or from those who tried to silence the Spanish citizens that were exercising their right to free speech by criticising the Iraq war.
One commentator referred to Monday of this week as «the day that diplomacy died». Diplomacy will not disappear overnight, unless this becomes a consequence of greater government transparency and participation. What is true as that diplomacy will never be the same again, because henceforth the public will demand greater transparency, greater honesty, and greater accountability.
Any governments which do not heed these calls will find that the pressure builds and leaks occur. Access Info Europe has witnessed time and again that when governments do not release information to the public, a head of steam builds up, and eventually some information will filter out. The culture of frequent leaks in Spain is a perfect example of this. In the only large European country (over 1,000 inhabitants) with no access to information law, even the draft transparency law had to be leaked to the media. All access to information requests for this document were denied by government silence.
Information should never have to be leaked. Wikileaks should not need to exist. But until governments apply proper transparency standards and inform the public of what they are doing with public power and public money, leaks will always occur. The level of leaks should not be seen as an indicator of criminal activity by public officials or by journalists, but as an indicator of the failure to respect the public’s right to know.
Helen Darbishire is Executive Director of Access Info Europe (based in Madrid, Spain).
Pam Bartlett Quintanilla is coordinator of the 100 Question Campaign in the same organisation.
The original article was published in El País on Tue 7 Dec 2010, and can be found online here