BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld a complaint that it was inaccurate and unfair to describe WikiLeaks as a ‘hacktivist’ organisation during a RNZ news bulletin reporting on a rise in hacktivism, and how hacktivists often work together with cyber-criminal groups. The Authority found that the term being used to describe Wikileaks was not a material inaccuracy, given WikiLeaks’ role in the hacktivist ‘ecosystem’. The Authority further found the report was not unfair to WikiLeaks or its founder.

Not Upheld: Accuracy, Fairness

The broadcast

[1]  A business news bulletin broadcast on RNZ National around midday on 28 March 2023 included a story about ‘hacktivism’. During this story, the following comments aired:

Host:               Staying with cyber, companies and government agencies are being warned to look out for the rise of so-called hacktivism that may be targeting their systems. Hacktivism is a form of internet activism, where groups hack websites to promote a political agenda or social change. Notable hacktivist groups include WikiLeaks and Anonymous. Former US Homeland Security Director Marty Edwards says most hacktivists often work together with cyber-criminal groups.

Edwards:        These criminal organisations, they just want to make money. And if the one way they can make money is selling their ransomware as a service, you know they basically put together these tool-kits. You know these criminal organisations are run like small companies, they have payroll departments, they have tech support. If the malware or the ransomware that you purchase from them doesn’t work you call their toll-free phone number.

Host:               […] who’s now at cyber-security firm Tenable, says New Zealand’s critical infrastructure remains vulnerable to hackers.

The complaint

[2]  Chris Keene complained that the broadcast breached the accuracy and fairness standards of the Code of Broadcasting Standards in New Zealand for the following key reasons:

• ‘WikiLeaks has nothing [to do] with hacking… WikiLeaks are not hacktivists they are publishers.’
• It was unfair to WikiLeaks and Julian Assange (WikiLeaks’ founder) to describe them in this way.

[3]  On referral to the Authority, the complainant added:

• ‘To be a hacktivist organisation you need to be directly involved in the hacking of information.’
• ‘I challenge RNZ or anyone to provide one instance where WikiLeaks was involved in hacking. WikiLeaks are publishers and as with all media organisations they may publish some material that is provided to them via hacking but this does not make them hacktivists.’
• ‘Whether other organisations call WikiLeaks hacktivists or not is of no bearing on the truth.’

The broadcaster’s response

[4]  RNZ did not uphold Keene’s complaint for the following key reasons:

• ‘While it is true that WikiLeaks publishes information and refers to itself as a “publisher and media organisation founded in 2006”, RNZ would fail as a responsible public broadcaster if it did not point out that the type of information published by WikiLeaks is of a very specific nature.’
• ‘WikiLeaks was established to obtain and disseminate classified documents and data. It is variously described in other media as a “whistleblowing platform established by Julian Assange” or a “clearinghouse for classified or otherwise privileged information”. In fact, some definitions of “hacktivism” use WikiLeaks and Anonymous as examples.’
• ‘To be clear, the reference to which your complaint objects is not inaccurate, nor misleading, nor unfair.’

The standards

[5]  The purpose of the accuracy standard¹ is to protect the public from being significantly misinformed.² It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[6]  The fairness standard³ protects the dignity and reputation of those featured in programmes.⁴ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[7]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[8]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁵

Accuracy

[9]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[10]  The standard is concerned only with material inaccuracies. Technical or other points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.⁶

[11]  The complainant has alleged the broadcast was misleading in describing WikiLeaks as a ‘hacktivist’ organisation.

[12]  ‘Hacktivism’ is not a well-defined term.⁷ The broadcast defined it as ‘a form of internet activism, where groups hack websites to promote a political agenda or social change’. The Oxford English Dictionary defines the term as ‘The practice of gaining unauthorized access to computer files or networks in order to further social or political ends.’⁸ However other definitions include ‘acts of electronic resistance that are unlawful or whose legality is contested, thereby making lawbreaking rather than hacking central to the definition’⁹ or ‘the act of misusing a computer system or network for a socially or politically motivated reason’.¹⁰

[13]  As noted by the broadcaster, media outlets,¹¹ as well as academics¹² and other organisations,¹³ have used the term ‘hacktivist’ to describe WikiLeaks and Julian Assange. However there have been calls from Assange’s lawyer for the term not to be used to describe him.¹⁴

[14]  The question for the Authority is whether it was materially misleading to describe WikiLeaks as a ‘hacktivist’ organisation. While WikiLeaks may not hack computer systems itself, the organisation is clearly a part of the hacktivist ‘ecosystem’, and a contributor to the aims of ‘hacktivism’ as a publisher of leaked or hacked documents (for social or political reasons).¹⁵ One article, accessible via a WikiLeaks website link (under ‘WikiLeaks is cited in more than 28 thousand academic papers and US court filings’)¹⁶ describes WikiLeaks’ place in this ‘ecosytem’ as follows:¹⁷

WikiLeaks…is the product of decades of collaborative work by people engaged in applying computer hacking to political causes, in particular, to the principle that information-hoarding is evil – and, as Stewart Brand said in 1984, ‘Information wants to be free’.

[15]  In these circumstances, describing WikiLeaks as a ‘hacktivist’ group, even if it has no direct involvement in computer hacking, can be seen as a technical error. In the context of this broadcast, it would not have been materially misleading to the audience.  

[16]  Having found the programme was not materially misleading, it is not necessary to determine whether or not the broadcaster has made reasonable efforts to ensure the accuracy of the programme.¹⁸ Accordingly, we do not uphold this complaint under the accuracy standard.

Fairness

[17]  The complainant has argued it was unfair to WikiLeaks and Assange to describe WikiLeaks as a ‘hacktivist group’.

[18]  A consideration of what is fair, and the threshold for finding unfairness to an individual or organisation, may take into account the nature of the broadcast, the nature of the individual or organisation referred to, and whether the programme would have left the audience with an unfairly negative impression of the individual or organisation.¹⁹

[19]  Overall we did not find any unfairness to WikiLeaks or Assange arising from this broadcast. The key factors supporting this view were:

• As discussed above, the description of WikiLeaks as a ‘hacktivist group’ was not materially misleading given the part it plays in publishing relevant material.
• It could be argued WikiLeaks may be adversely affected by this description in the context of the broadcast, due to the association made between hacktivist organisations and cyber-criminal groups (‘Former US Homeland Security Director Marty Edwards says most hacktivists often work together with cyber-criminal groups’). However, we note WikiLeaks was only mentioned as an example of a ‘notable hacktivist group’ and the broadcast did not state explicitly that WikiLeaks worked with cyber-criminal groups.
• In any event, WikiLeaks and Assange are well known for publishing classified information. They have been alleged to have worked with cyber-criminals,²⁰ and have been investigated or charged in criminal proceedings themselves.²¹
• WikiLeaks is an organisation with a large public profile and is used to regular media attention. On this basis, the threshold for finding unfairness is higher.²²
• It is also commonplace for public figures (and similarly large organisations) to be criticised without it giving rise to an expectation of participation, or presentation of their perspectives, in every broadcast.²³

[20]  We accordingly do not consider the broadcast, by mentioning WikiLeaks as an example of a ‘hacktivist group’ in the above context, would have left listeners with an unfairly negative impression of WikiLeaks or Assange.

[21]  On this basis the standard was not breached.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Tupe Solomon-Tanoa’i
Member
12 September 2023  

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Chris Keene's formal complaint to RNZ - 28 March 2023

2  RNZ’s decision on the complaint - 23 May 2023

3  Keene’s referral to the Authority - 3 June 2023

4  RNZ confirming no further comments – 11 August 2023

¹ Standard 6, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
³ Standard 8, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ Guideline 6.2
⁷ First Line Practitioners “”Hacktivism”: about the origins, meaning and history of online Activism” <www.firstlinepractitioners.com> see discussion under ‘Defining “Hacktism”’
⁸ Oxford English Dictionary “hacktivism, n.” <oed.com>
⁹ Candice Delmas “Is Hacktivism the New Civil Disobedience?” Dans Raisons Politiques 2018/1 (No. 69) at [26]
¹⁰ Ben Lutkevich “Definition: hacktivism” Techtarget May 2021
¹¹ Curt Mills “WikiLeaks Says It Wants To Publish Trump’s Tax Returns” US News (online ed, 23 January 2017); William Booth and Rachel Weiner “U.S. offers that Assange could serve sentence in Australia in extradition appeal” The Washington Post (online ed, 8 July 2021)
¹² Wendy H. Wong and Peter A. Brown “E-Bandits in Global Activism: WikiLeaks, Anonymous, and the Politics of No One” Perspectives on Politics Vol. 11, No. 4 (December 2013) pp.1015-1033 at 1015; Tom Sorrell “Human Rights and Hacktivism: The Cases of Wikileaks and Anonymous” Journal of Human Rights Practice, Vol. 7, No. 3, (November 2015) pp. 391–410
¹³ First Line Practitioners “”Hacktivism”: about the origins, meaning and history of online Activism” <www.firstlinepractitioners.com>
¹⁴ Barry J. Pollack (a lawyer representing Julian Assange) “Opinion: Mr. Assange is a journalist, not a ‘hacktivist’” The Washington Post (online ed, 16 July 2021)
¹⁵ Ellen Nakashima and Shane Harris “How the Russians hacked the DNC and passed its emails to WikiLeaks” The Washington Post (online ed, 13 July 2018);

David Welna “12 Years Of Disruption: A WikiLeaks Timeline” NPR (online ed, 11 April 2019); WikiLeaks “What is WikiLeaks”  (3 November 2015) <wikileaks.org>
¹⁶ WikiLeaks “What is WikiLeaks”  (3 November 2015) <wikileaks.org>
¹⁷ Peter Ludlow “WikiLeaks and Hacktivist Culture” The Nation (online ed, 4 October 2010)
¹⁸ Van der Merwe and Mediaworks TV Ltd, Decision No. 2019-015 at [21]
¹⁹ Guideline 8.1
²⁰ Kevin Breuninger, Dan Mangan “WikiLeaks’ Julian Assange charged with 17 new criminal counts, including violating Espionage Act” CNBC (online ed, 23 May 2019); Britannica “Chelsea Manning” (29 July 2023) <Britannica.com>
²¹ Center for Constitutional Rights “Call for Submissions on the Protection of Sources and Whistleblowers by the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye: Written Submission of the Center for Constitutional Rights” (22 June 2015) <ccrjustice.org> at para 52-55
²² As above
²³ See for example: Absalom and MediaWorks Radio Ltd, Decision No. 2023-030 at [12]