Bank Julius Baer vs. Wikileaks lawsuit

The Bank Julius Baer vs. Wikileaks lawsuit was filed by Bank Julius Baer against the website Wikileaks.

In early February 2008, attorneys for the bank won an injunction that forced Dynadot, the domain registrar of Wikileaks.org, to disassociate the site's domain name records with its servers, preventing use of the domain name to reach the site.

The bank's actions roused media and cyber-liberties groups to defend Wikileak's rights under the First Amendment and brought renewed scrutiny to the documents the bank hoped to shield.

The judge lifted the injunction and the bank dropped the case on March 5, 2008.

Background

In 2002, the bank learned records pertaining to the arrangement of anonymizing trusts in the Cayman Islands for clients from 1997 to 2002 had been leaked. They interviewed the local employees with a polygraph as per company policy. The bank was unsatisfied with the answers of Cayman unit COO Rudolf Elmer, and terminated his employment. In June 2005, the leak was reported by the Swiss financial weekly "Cash" and the Wall Street Journal, though details of individual accounts were not reported on. [cite web
title=Julius Baer Says Unit's Client Data Were Stolen
url=http://online.wsj.com/article/SB111887029173960737.html
first=Edward
last=Taylor
date=2005-06-16
work=Wall Street Journal] In December 2007, Elmer released documents related to Wikileaks regarding surveillance of him and his family. The next month, some of the leaked account data began appearing on Wikileaks. Contributors to wikileaks allege that these provide evidence of asset hiding, money laundering and tax evasion. Ten account holders in the United States, Spain, Peru, Germany, Greece, Hong Kong, and Switzerland have been identified so far on Wikileaks.Fact|date=March 2008

According to Daniel Schmitt's analysis for Wikileaks, leaked account data exists from after the date that Elmer left the Caymans. [cite web
title=Clouds on the Cayman tax haven
url=http://wikileaks.org/wiki/Clouds_on_the_Cayman_tax_heaven
date=2008-02-15
work=Wikileaks]

Legal action, injunction

In January, Bank Julius Baer began sending cease & desist letters to Wikileaks and its domain registrar, Dynadot, for the wikileaks.org domain name, citing the DMCA.cite press release | title=Wikileaks.org under injunction | url=http://www.wikileaks.org/wiki/Wikileaks.org_under_injunction | work=Wikileaks | date=18 February 2008 | accessdate=2008-02-28] [ [http://news.justia.com/cases/featured/california/candce/3:2008cv00824/200125/ Bank Julius Baer & Co. Ltd. et al. v. Wikileaks et al.] ] On February 18, 2008, Judge Jeffrey White of the U.S. District Court for the Northern District of California issued a permanent injunction against Dynadot forcing it to "lock the wikileaks.org domain name". [ [https://s.p10.hostingprod.com/@spyblog.org.uk/ssl/wikileak/censorship_threats_from_lawyers/ WikiLeak: Censorship threats from Lawyers Archives ] ] Mirror sites, such as http://wikileaks.be , were not affected. [" [http://news.bbc.co.uk/1/hi/technology/7250916.stm Whistle blower site taken offline] ," "BBC News", Monday, 18 February 2008, 16:20 GMT] [" [http://dofonline.co.uk/governance/swiss-bank-obtains-injunction-against-whistleblower-site5352.html Swiss bank obtains injunction against whistleblower site] ," "Director of Finance Online", 19 February 2008, 16:10 GMT] The text of the posted injunction stated that "immediate harm will result to Plaintiffs in the absence of injunctive relief", as is required for injunctions to be granted. The general assumption is that some leaked documents were alleged by the bank to be libellous, trade secrets, copyrighted, or otherwise prohibited for distribution, in a manner that would cause harm to it.

Wikileaks had not sent a representative to the hearing at which the injunction was granted. According to an editorial on the Wikileaks website, Julius Baer had some communication with Wikileaks before going to court to get the injunction, but did not inform Wikileaks in which city it would seek the injunction and did not present to the court these email communications. [cite web|url=http://wikileaks.org/wiki/Wikileaks_blasts_Cayman_Islands_bank |title=Wikileaks blasts Cayman Islands bank |work=Wikileaks |date= |accessdate=2008-10-10] The law firm representing Baer works primarily in the entertainment industry in Los Angeles. They applied for and got the injunction at a court in San Francisco - 450 miles (700 km) from Los Angeles.

Negative publicity for bank

The Julius Baer lawsuit drew a great deal more negative attention than would the leaks alone. The term "Streisand Effect" refers to drawing more attention to embarrassing information by attempting to suppress that information. Julius Baer had already got an injunction against Wikileaks prohibiting Wikileaks from circulating the documents that Julius Baer wanted to suppress [" [http://news.bbc.co.uk/2/hi/technology/7268581.stm Legal aid for whistle-blower site] ," "BBC News".] without attracting significant attention from news media, i.e. no Streisand Effect. But then Julius Baer drew a huge amount of attention to itself by seeking and getting a second injunction imposing a measure that would suppress not only the information that Julius Baer considered embarrassing, but also the entire Wikileaks website consisting of all manner of documents presented as evidence of all manner of crimes - both in corporations and in governments, including human rights abuses - by many alleged criminals worldwide in cases having nothing to do with Julius Baer. For example, the site has given exposure to evidence of human rights abuses in China and political corruption in Kenya. [cite web|url=http://www.betanews.com/article/EFF_ACLU_say_Wikileaks_shutdown_harms_First_Amendment_rights/1204147680 |title=EFF, ACLU say Wikileaks shutdown harms First Amendment rights |publisher=Betanews.com |date= |accessdate=2008-10-10] [cite web|url=http://www.eff.org/press/archives/2008/02/26-0 |title=EFF, ACLU Move to Intervene in Wikileaks |publisher=Electronic Frontier Foundation|date=February 27th, 2008 |accessdate=2008-10-10] The Wikileaks website claims to have 1.2 million documents that users have posted anonymously to provide evidence of incidents of wrongdoing that deserve public scrutiny. [cite web|url=http://wikileaks.org/wiki/Wikileaks:About#Wikileaks_has_1.2_million_documents.3F |title=About |work=Wikileaks |date= |accessdate=2008-10-10] Only 14 of these documents were pertinent to the Julius Baer case. [cite web|url=http://www.infozine.com/news/stories/op/storiesView/sid/27212/ |title=EFF, ACLU Move to Intervene in Wikileaks Case - USA |publisher=Kansas City infoZine News |date=2008-10-09 |accessdate=2008-10-10]

After the injunction was initially granted, it was successfully challenged in a joint action by the following intervenors: [http://www.eff.org/files/filenode/motiontointervene.pdf] [cite web|url=http://wikileaks.org/wiki/Media_and_civil_liberties_organizations_file_briefs_in_support_of_Wikileaks
accessdate=2008-10-09
title=Media and civil liberties organizations file briefs in support of Wikileaks |work=Wikileaks
date=2008-09-30] cite web|url=http://www.eff.org/cases/bank-julius-baer-co-v-wikileaks |title=Bank Julius Baer & Co v. Wikileaks |publisher=Electronic Frontier Foundation|author=EFF, ACLU |date= |accessdate=2008-10-10]
* Electronic Frontier Foundation (EFF)
* American Civil Liberties Union (ACLU)
* Project on Government Oversight (POGO)
* Jordan McCorkle

A similar brief was filed bycite web|url=http://wikileaks.org/wiki/Media_and_civil_liberties_organizations_file_briefs_in_support_of_Wikileaks |title=Media and civil liberties organizations file briefs in support of Wikileaks - Wikileaks |work=Wikileaks|date= |accessdate=2008-10-10]

* Public Citizen - founded by Ralph Nader
* California First Amendment Coalition (CFAC)

Another brief in support of Wikileaks was filed by:

# Reporters Committee for Freedom of the Press (RCFP)
# American Society of Newspaper Editors (ASNE)
# Associated Press - (AP) world wide news agency, based in New York
# Citizen Media Law Project
# E.W. Scripps Company - newspapers, TV, cable TV etc.
# Gannett Company, Inc. - the largest publisher of newspapers in the USA, including "USA Today"
# Hearst Corporation - media conglomerate which publishes the San Francisco Chronicle
# "Los Angeles Times"
# National Newspaper Association (NNA)
# Newspaper Association of America (NAA)
# Radio-Television News Directors Association (RTNDA)
# Society of Professional Journalists (SPJ) - also provided some legal funding

The First Amendment of the United States Constitution is stated in terms of establishing the right to propagate information. These legal briefs mentioned legal precedents stating that the First Amendment also establishes the right of citizens to read information. One of the participants in the successful challenge to the injunction was Jordan McCorkle, an ordinary citizen who reads the Wikileaks website regularly.

As well as backfiring in terms of the attention it attracted, the injunction could not be entirely effective in suppressing the website anyway in that the alternate Wikileaks domains were unaffected, and Wikileaks was still available directly by its IP address, 88.80.13.160. To shut down these access methods, it would be necessary to pursue injunctions in the jurisdictions where they are registered, or where the servers reside, which are deliberately scattered to make this difficult. [cite news | title=Vying for Control of the Internet: Is Wikileaks Unstoppable? | work=The Legality | url=http://www.thelegality.com/archives/28 | date=2008-02-27 | accessdate=2008-03-03]

The law firm representing Baer was Lavely and Singer. They claimed to be acting, in part, to protect Baer's customers from having information about the customers become public. But one of the documents filed in court by Lavely and Singer identified one of the customers of interest by name as well as giving his street address. [cite web|url=https://s.p10.hostingprod.com/@spyblog.org.uk/ssl/wikileak/2008/02/lavely_singer_demonstrate_how_not_to_protect_the_confidentiality_of_customers_of.html |title=WikiLeak: Lavely & Singer demonstrate how not to protect the confidentiality of customers of Bank Julius Baer |publisher=S.p10.hostingprod.com |date= |accessdate=2008-10-10]

Injuction lifted, case dropped

Judge White dissolved the injunction [cite news | work=Reuters| url=http://www.reuters.com/article/internetNews/idUSN2927431720080229 | title=Judge reverses ruling in Julius Baer leak case| accessdate=2008-02-29] on February 29, 2008 allowing Wikileaks to reclaim its domain name.

The bank dropped the case on March 5, 2008.cite web
url=http://www.informationweek.com/management/showArticle.jhtml?articleID=206902154
title=Swiss Bank Abandons Lawsuit Against Wikileaks: The wiki had posted financial documents it said proved tax evasion by Bank Julius Baer's clients
first=Thomas
last=Claburn
publisher=InformationWeek
date=March 2008]

References