Investigation Conclusion

Investigation Report No. 3066

File no. ACMA2013/938

Broadcaster Australian Broadcasting Corporation

Station ABN Sydney

Type of service National Broadcaster

Name of program Four Corners

Date/s of broadcast 23 July 2012

Relevant Standards 2.1, 2.2, 4.1 and 4.5 of the ABC Code of Practice 2011 Legislation/Code

Investigation conclusion

The Australian Communications and Media Authority concludes that the ABC:  did not breach standard 2.1 [reasonable efforts to ensure accuracy]  did not breach standard 2.2 [materially mislead the audience]  did not breach standard 4.1 [gather and present information with due impartiality]  did not breach standard 4.5 [unduly favour one perspective over another] of the ABC Code of Practice 2011.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 1 Error: Reference source not found

The complaint The Australian Communications and Media Authority (the ACMA) received a complaint by two complainants1 about a segment of the program, Four Corners, broadcast by ABN Sydney (the ABC) on 23 July 2012. The complaint is that the segment was inaccurate and biased. The ACMA has considered the ABC’s compliance with standards 2.1 [reasonable efforts to ensure accuracy], 2.2 [factual content that will materially mislead], 4.1 [gather and present information with due impartiality] and 4.5 [unduly favour one perspective over another] of the ABC Code of Practice 2011 (the Code).

The program Four Corners is a current affairs program broadcast on the ABC on Mondays at 8.30pm and is described on the ABC’s website in the following terms: Four Corners is Australia's premier television current affairs program.

It has been part of the national story since August 1961, exposing scandals, triggering inquiries, firing debate, confronting taboos and interpreting fads, trends and sub-cultures2.

The segment broadcast on 23 July 2012 ‘Sex, lies and Julian Assange’ was introduced as follows: He humiliated the most powerful country in the world, but his relationship with two Swedish women, and their claims of sexual assault, may yet destroy Julian Assange.

It explored the circumstances surrounding allegations of rape and sexual assault made against Mr Assange in Sweden and his departure for London, where an Extradition Order was made for his return to Sweden. It also dealt with his concern that attempts by authorities to return him to Sweden are part of a plan to extradite him to the United States to face action over his WikiLeaks activities. The segment included interviews with the following:  Mr Assange  the UK (JR), US (MR) and Swedish (PS) legal representatives of Mr Assange  a representative of the two women who made the allegations against Mr Assange (CB)  an Icelandic MP (BS)  the editor of Expressen newspaper in Sweden (TM)  a representative of the Swedish Pirate Party (RF)  a representative from the Swedish Prosecutor’s Office (KR)  a representative from Iceland Modern Media Initiative (SM)

1 The complaint is made by two complainants who had separately lodged complaints with the ABC. 2 http://www.abc.net.au/4corners/about/

2  a representative from Internet Liberty (JZ).

A transcript of the broadcast is at Attachment A.

Assessment This investigation is based on correspondence between the two complainants and the ABC, submissions from the complainants and from the ABC to the ACMA, and a copy of the broadcast provided to the ACMA by the ABC. Other sources used have been identified where relevant. The ACMA has also considered, where relevant, the Agreed Statement of Facts and Issues between Mr Assange and the Swedish Prosecution Authority in the Supreme Court of the United Kingdom, on appeal from Her Majesty’s High Court of Justice (Administrative Court) (England and Wales).3 The Statement was referred to by the reporter in the broadcast: ‘Using facts agreed between the defence and prosecution and other verified information, we have pieced together what happened during those crucial three weeks in August.’ The complainants contend that it is not feasible to rely on this Statement as it was obtained for the purpose of proceedings in the United Kingdom rather than in Sweden. As the Statement was agreed by the two key parties referred to in the program and directly relates to the events presented in it, the ACMA considers that it is relevant to the accuracy of the factual issues raised in this investigation. Where the Agreed Statement of Facts and Issues verifies material impugned by the complainants, the ACMA considers that the ABC’s reliance on it may discharge the ABC’s obligation to make reasonable efforts to ensure that relevant material facts are accurate and presented in context. Ordinary, reasonable viewer In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener or viewer. Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs4.

In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, visual images, context, tenor, tone, and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any). Once the ACMA has ascertained the meaning conveyed, it then determines whether the Code has been breached.

3 http://www.scribd.com/doc/80912442/Agreed-Facts-Assange-Case 4 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 3 Error: Reference source not found

Matters not pursued Matters not included in complaint to the ABC The complaint to the ACMA also contains a number of matters which were not included in the original complaints to the ABC of 10 September 2012 and 26 March 2013. As the complainants did not first complain to the ABC about these matters, as required under section 150 of the Broadcasting Services Act 1992, the ACMA has not pursued these aspects of the complaint in this investigation. ABC’s complaint handling The complainants requested that the ACMA investigate the length of time taken by the ABC to respond to one of their complaints. Part 3 of the Code states that ‘the ABC seeks to comply fully with the Code and to resolve complaints as soon as practicable’. The ACMA considers that, while the complainants were not satisfied with the ABC’s response (resulting in the complaint to the ACMA), this aspect of the complaint is concerned with the length of time it took for a response to be provided by the ABC to the initial complaint. The ACMA notes that the ABC made a substantive response to the relevant complainant dealing with the numerous issues raised in that complaint. In the circumstances and noting that there is no clause in the Code requiring the ABC to respond within a fixed time frame, the ACMA is not satisfied that the ABC failed to comply with any obligations at Part 3 of the Code.

Issue 1: Accuracy

Relevant Code standards 2.1 Make reasonable efforts to ensure that material facts are accurate and presented in context.

2.2 Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

The relevant Principles in the Code include:

Types of fact-based content include news and analysis of current events, documentaries, factual dramas and lifestyle programs. The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

 the type, subject and nature of the content;

 the likely audience expectations of the content;

 the likely impact of reliance by the audience on the accuracy of the content; and

 the circumstances in which the content was made and presented.

The ABC accuracy standard applies to assertions of fact, not expressions of opinion. An opinion being a value judgment or a conclusion, cannot be found to be accurate or inaccurate in the way facts can. The accuracy standard requires that opinions be conveyed accurately, in

4 the sense that quotes should be accurate and any editing should not distort the meaning of the opinion expressed.

The efforts reasonably required to ensure accuracy will depend on the circumstances. Sources with relevant expertise may be relied on more heavily than those without. Eyewitness testimony usually carries more weight than second-hand accounts. The passage of time or the inaccessibility of locations or sources can affect the standard of verification reasonably required.

In applying standard 2.1 of the Code, the ACMA usually adopts the following approach:  Was the particular material (the subject of the complaint) factual in character?  Did it convey a ‘material’ fact or facts in the context of the relevant broadcast?  If so, were those facts accurate?  If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the ‘material’ fact was accurate and presented in context?

In applying standard 2.2 of the Code, the ACMA usually adopts the following approach:  Was the particular material (the subject of the complaint) factual in character?  Was that factual content presented in a way that would materially (ie in a significant respect) mislead the audience? The considerations the ACMA uses in assessing whether or not broadcast material is factual in character are set out at Attachment B.

Submissions Relevant extracts from the submissions of the complainants and the ABC are at Attachments C and D respectively.

Findings

The ABC has not breached standards 2.1 and 2.2 of the Code. The complainants submitted that the statements set out below were inaccurate. The ACMA has adopted the time codes used by complainant 1. These time references, along with the allegations of inaccuracy, are set out in the complaint to the ABC at Attachment C. In respect of each statement, the ACMA has examined the ABC’s efforts to ensure that the material facts were accurate and presented in context, and whether factual content was presented in a way that would have materially misled the audience. 1. Assange’s Swedish residency and work permit application (06.20)

The complaint is that the broadcast fails to disclose that when Mr Assange travelled to Sweden in August 2010 for the purpose of establishing WikiLeaks there he also travelled for the purpose of applying for Swedish residency and a work permit.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 5 Error: Reference source not found

The ACMA considers that the ordinary reasonable viewer would have understood the program to have focussed on the establishment of WikiLeaks in Sweden and events leading to Mr Assange being investigated in Sweden for alleged sexual offences. The ACMA notes that there is no Code requirement for all facts that are potentially relevant to a program to be presented. In this case, any facts concerning Mr Assange’s residency application need only to have been included if the omission of such facts would render the balance of the broadcast misleading. The ACMA is satisfied that it did not do so. The material concerning the establishment of WikiLeaks in Sweden was accurate and presented in context and was not presented in a way that would have misled the audience. As the material is accurate, there is no need for the ACMA separately to assess the efforts taken by the ABC to ensure accuracy. 2. The question of consent (reduced to the use of a condom) (10.07)

The complaint is that the program reduces the question of consent to the use of a condom. However, ‘both her [SW] being asleep and the lack of condom (for which there was a clear lack of consent) are the actual allegations. This was ignored.’ The relevant statements (in bold) were:

PS: He came to Sweden on the 11th of August 2010, and he had this apartment where one of these women lived. She was supposed to be away so he could stay there, but she came home on the Friday night - 13th of August - and then they had consensual sex and he continued to stay in that apartment until the 18th of August. But in the meantime he made acquaintance with the other woman, and one night he travelled to her town in Sweden and they had co-co-co -

REPORTER: Consensual.

PS: Consensual sex.

REPORTER: The sex with [SW] in her apartment might have been consensual, but critically there was a question over whether Assange had used a condom. The next day, Assange caught the train back to Stockholm. [SW] stayed at home, worried about the possibility of an STD infection. She later rang [AA], Assange's lover of the previous week.

PS: Somehow the two women started to exchange text messages which - with each other and started to discuss what had happened, and they ended up at the police station, but they did not file any charges against Julian.

REPORTER: [AA] and [SW] went to Central Stockholm's Klara police station to see if they could compel Assange to take an STD test should he refuse.

PS: But the police interpreted what one of the girls said as some sort of sex crime having been committed and that resulted in a prosecutor the same night issuing a warrant of arrest for Julian.

The segment then covered the circumstances surrounding Mr Assange’s initial interview with the Swedish police, his departure for London, the issue of a warrant for his arrest and his further WikiLeaks activities and US and Australian responses. It also covered the extradition proceedings in the United Kingdom, discussion of his likely imprisonment on return to Sweden

6 and possible onward extradition to the United States before returning to the events of August 2010. [...]

REPORTER: On August 11th 2010, Assange arrived in Sweden to attend a conference organised by the Swedish Brotherhood, a branch of the Social Democratic Party. He was offered [AA]’s apartment while she was away, but [AA] returned home a day early on Friday the 13th. She invited Assange to stay the night, and they had sex. She would later tell police Assange had violently pinned her down and ignored her requests to use a condom. Assange denies this.

[...]

In the past 24 hours,[AA] had worked closely with Assange, had sex with him, organised a crayfish party on his behalf, and, according to one witness, turned down alternate accommodation for him. It is during this same period that police will later investigate whether Assange coerced and sexually molested [AA].

[...]

Three days later on August 20th, [SW], accompanied by [AA] went to the Klara police station in central Stockholm to seek advice about whether Assange could be forced to take an STD test. [AA] had gone along primarily to support [SW]. Sometime during [SW]'s questioning the police announced to [AA] and [SW] that Assange was to be arrested and questioned about possible rape and molestation...

The nature of the allegations made by the two women against Mr Assange was factual material. It was specific, unequivocal and capable of independent verification. The Agreed Statement of Facts and Issues verifies the nature of those allegations. It notes that the statements by the two women were treated as reports of rape and molestation (par 4); there was an assessment that the evidence did not disclose any offence of rape (par 7); the investigation continued in respect of whether the alleged conduct could constitute some lesser offence than rape, and molestation (par 8) the preliminary investigation would continue into alleged molestation (par 9) the preliminary investigation would be resumed in relation to rape (par11); a detention order was sought in absentia upon the prosecutor’s assertion of the reasonable suspicion of the commission of the offence of rape and the offences of unlawful coercion and two instances of sexual molestation (par 25); the rape allegation was reduced to ‘minor rape’ (par28). The ACMA considers that the issue of consent was presented accurately and in context having regard to the following.  The reporter indicates that the sex with SW ‘might’ have been consensual. It makes no definitive statement.  The broadcast later raises the issue of consent in relation to one of the two women who accused him of being violent as well as ignoring her requests to use a condom.  In the report PS makes it clear that the police interpreted what one of the women had said as ‘some sort of sex crime’.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 7 Error: Reference source not found

 The reporter also notes that the police investigated whether Mr Assange coerced and sexually molested AA.  The reporter states that Mr Assange was to be arrested and questioned about possible rape and molestation. As such, it was made clear in the program that the allegations being investigated against Mr Assange entailed not only the lack of a condom but broader sexual assault issues involving the question of consent. The ACMA is satisfied that the material facts were accurate and presented in context. As the material is accurate, there is no need for the ACMA to assess the efforts taken by the ABC to ensure accuracy. In addition, factual content was not presented in a way that would materially mislead the audience. 3. Statements concerning the absence of a charge (10.50) and future detention without charge (18.18) The complaint is that the reporter claims that neither woman filed charges. However, ‘both women made complaints according to the memo by [the supervising police officer]’ and ‘charges can’t happen until after Assange is interviewed in Sweden...’ In relation to future detention the complaint is that, contrary to the implication in the program, ‘pre-trial detention is a fairly standard practice for most suspects of serious crimes...’ and the Swedish court had ruled that Mr Assange would have no restrictions in jail. The relevant statements (in bold) were:

PS: Somehow the two women started to exchange text messages - with each other and started to discuss what had happened, and they ended up at the police station, but they did not file any charges against Julian.

[...]

REPORTER: Assange in fact did go to the Swedish Police ten days after the first allegations were made. He was interviewed but not charged with any offence, and he was free to leave the country while the inquiry continued.

[...]

REPORTER: Assange is safe all the time he remains inside the [Ecuador] embassy. But once he steps out it’s certain that he’ll be arrested and extradited to Sweden.

PS: The minute he hits Swedish soil he will be arrested. He will be brought to a custody jail. He will be kept there in isolation for four days. He can only meet with me and my co-lawyer. On the fourth day he will be brought into a courtroom in handcuffs in front of a custody judge, and they will decide whether he will be kept in custody up until the final court case is tried, or if [...] he will be released. I will try to get him released of course. But at least four days in Sweden in Swedish prison is - we can't avoid that.

8 Whether Mr Assange had been charged at the relevant time was factual material. It was specific, unequivocal and capable of independent verification.

The ACMA considers that:  The ordinary reasonable viewer would have understood that in response to the allegations by the two women, an investigation was opened. Swedish police issued a warrant for Mr Assange’s arrest and he attended an initial interview but was not charged. He then left Sweden and a further warrant for his arrest was issued. Extradition proceedings were instituted and appealed in London. Mr Assange had not yet been charged (or prosecuted) with the offences for which the arrest warrants were issued.  The Agreed Statement of Facts and Issues verifies that Mr Assange had not been charged and a decision to prosecute had not been made at the relevant dates. The arrest and extradition were sought in order to interview him in Sweden as part of the investigation into the allegations against him prior to charge or prosecution.  It states that ‘throughout September, October and November [2010...] the investigation was ongoing and that no decision had been taken to charge or prosecute’ (par 22). In November 2010 his detention was sought by the Swedish prosecutor upon its ‘assertion of reasonable suspicion of the commission of’ offences (par 25). His arrest was sought ‘in order to enable implementation of the preliminary investigation’ (par 29). Counsel had been permitted to examine part of the investigation file but had not had access to the complete file because under Swedish law Mr Assange ‘is only entitled to have access to this material once a final decision to prosecute is made’ (par 35). The English High Court held that he was an ‘accused person’ (par 46(c)). As he has not yet returned to Sweden, Mr Assange has not yet been charged and a decision to prosecute has not yet been made. Accordingly, the ACMA is satisfied that the relevant factual material was presented accurately and in context and was not presented in a way that would have misled the audience. In respect of the separate question as to whether Mr Assange would be detained without charge on return to Sweden, the ACMA is satisfied that the statement of Mr Assange’s Swedish lawyer PS, about the likelihood of his arrest and detention until the pre-trial custodial matters are determined, and possibly until he is (prosecuted) or tried, is a professional opinion and that it was accurately conveyed. The statements of Mr Assange about his future detention and ‘severe conditions’ would be understood by the ordinary reasonable viewer to be his viewpoint or opinion. They were in the nature of a prediction of a future event and clearly contestable or judgemental. Opinion is not subject to the accuracy provision of the ABC Code and there is no dispute that these expressions of opinion were accurately conveyed. 4. Statements concerning STD tests (10.59) and unsigned statements (27.05)

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 9 Error: Reference source not found

The complaint is that there was no evidence to suggest that police were asked by both women to enforce ‘STD tests’ and that ‘there is nothing in the police record (or anywhere else that we are aware) to suggest that [SW] refused to sign’ her police statement. The relevant statements concerning the STD test and unsigned statements (in bold) were:

REPORTER: Three days later on August 20th, [SW], accompanied by [AA] went to the Klara police station in central Stockholm to seek advice about whether Assange could be forced to take an STD test. [AA] had gone along primarily to support [SW]. Sometime during [SW]’s questioning the police announced to [AA] and [SW] that Assange was to be arrested and questioned about possible rape and molestation. [SW] became so distraught she refused to give any more testimony and refused to sign what had been taken down.

JR: The circumstances leading up to the issue of the arrest warrant gave cause for grave concern for Julian about the procedures that were adopted in the investigation. We have to remember that when the announcement was put out that he would be subject to a warrant, one of the complainants was upset by that, and later said that she felt railroaded by the police.

The ACMA considers that the statements concerning both the STD test and SW’s alleged refusals to give further testimony or to sign the testimony which had been given was factual material. They were specific, unequivocal and capable of independent verification. The ABC has submitted that it relied on the Agreed Statement of Facts and Issues for the reporter’s reference to the women attending the police station. The ACMA notes that the Agreed Statement of Facts and Issues (par 4) states:

SW wanted the Appellant to get tested for disease. On 20th August 2010 SW went to the police to seek advice. AA accompanied her for support. The police treated their visits as the filing of formal reports for rape of SW and molestation of AA.

The ACMA considers that the statement concerning the STD test is verified by the Agreed Statement of Facts and Issues. On the basis of the Agreed Statement of Facts and Issues, the ACMA is satisfied that the material concerning SW’s attendance at the police station was accurate and presented in context. As the material is accurate, there is no need for the ACMA to separately assess the efforts made by the ABC to ensure accuracy. The ACMA also considers that the factual content was not presented in a way that would have misled the audience. In respect of the statement concerning the refusal of SW to complete her interview or sign her record of interview, the ACMA considers that:  The ordinary, reasonable viewer would have understood that the police interview ended because of SW’s emotional state and that she refused to sign her record of interview.  Allegations of rape against Julian Assange and SW’s and AA’s reaction to events are prominent themes that are explored throughout the segment and their demeanour is relevant in this context. The ABC submitted that it had relied on publicly available extracts from police records of interviews which indicate that SW had ‘difficulty concentrating’ once she found out during the interview that Mr Assange was to be arrested. The interviewing officer had made ‘the

10 judgement that it was best to terminate the interview’ and noted that the ‘interview was neither read back to [SW] nor read by her for approval; but [SW] was informed that she could do so at a later date’. The ABC also submitted that police interviews with her brother and a work colleague verify that SW attended the police station to get advice from police as to how to compel Mr Assange to submit to testing for sexually transmitted disease, and that she was upset with the way events unfolded. In publically available English translations5 of the interviews, the record of interview with SW’s brother notes:

[SW] subsequently explained that she did not want to file charges against Julian, but only wanted him to get tested for infection. She went to the police to seek advice and then the police had filed charges.

[...]

She was also upset that the episode had been in the newspapers and that there had been so much hullabaloo about it.

The record of interview with SW’s work colleague notes:

They spoke quite a bit after [SW] had gone to the police and the media frenzy had begun. [SW] was very upset by all the hullabaloo and was very angry with Julian. [...] [M] wanted also to say that, when [SW] visited the hospital and the police, it did not turn out as [SW] wanted. She only wanted Julian to get tested. She felt that she had been run over by the police and others.

The ACMA accepts that this indicates that SW had some hesitation and regret about how events unfolded, and that she did not attend the police station for the purpose of having Mr Assange charged with sexual offences. However, there is no material before the ACMA confirming that SW specifically refused to give any more testimony or sign her statement. For this reason, the ACMA has considered what efforts the ABC took to ensure the accuracy of the material. In further submissions to the ACMA, the ABC has linked its reasonable efforts to reliance on the various accounts of witnesses set out above. Noting SW’s state of mind at the time, that her intention when she attended the police was not to make a complaint but to find out if she could compel Mr Assange to take a test for disease, that during the course of the interview she learned that Mr Assange was to be arrested on the basis of her statements, the ABC submitted that SW ‘...was upset and judged to be in no state to continue the interview. Given this scenario, it was reasonable for the program to simply state that [SW] refused to continue with the interview and refused to sign the record of interview.’ There is no dispute that the interview was terminated and the police statement was not signed on the day that SW attended because she was too upset to continue. There is also no dispute that the statement has not yet been signed. These facts are consistent with (though not

5 http://nnn.se/nordic/assange/protocol.htm

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 11 Error: Reference source not found evidence that) SW refused to continue the interview and to sign the record. Although it might have been preferable not to use the word ‘refused’, the ACMA considers that, on balance, the ABC made reasonable efforts to ensure that the information presented was accurate. It also considers that, in the context of the program in which it has been made clear that the police investigation has not been finalised, whether the statement was not signed on the day of the interview because SW refused to, or had no capacity to sign, is not a material fact. As such, the ACMA considers that the ABC met its obligation in respect of standard 2.1 as it made reasonable efforts to ensure that material facts concerning the termination of the police interview were accurate and presented in context. The ACMA also considers that, in accordance with standard 2.2, the factual content was not presented in a way that would have misled the audience. 5. Statements concerning departure and return dates – whether Mr Assange was free to leave Sweden (12.30) and his intention to return (13.39) The complaint is that the segment suggests that Mr Assange was not wanted for interview and was free to leave Sweden. However, ‘the exact message from the prosecutor was that no force measures are in place to prevent Assange from leaving Sweden’. The relevant statements (in bold) were:

PS: In mid-September he got a message from his then-lawyer, but the prosecutor did not want him [...] for an interview, and that he was free to leave Sweden, and under that assumption he left Sweden in the afternoon of the 27th of September in good faith that he had sought for and got approval from the prosecutor to leave the country.

[...]

REPORTER: It is perhaps understandable that Assange had doubts he would receive fair treatment from the Swedish authorities. On September 15th, the prosecutor told Assange he was permitted to leave Sweden. Assange, back in England, would later offer to return within a month. The Swedish authorities said too late - a second warrant had already been issued for his arrest. (to CB) He says that he left the country and then was prepared to come back at any time. Is that your understanding?

CB: I don't believe that.

REPORTER: He says that he was prepared to come back in October but the prosecutor wanted him back earlier.

CB: I don't know. I don't believe he wanted to, he wanted to come freely back to Sweden. I don't think so.

The ACMA considers that the question of whether Mr Assange was permitted to leave Sweden was factual material. It was specific, unequivocal and capable of independent verification. The ABC has advised that it based its statements as to Mr Assange’s right to leave Sweden on the Agreed Statement of Facts and Issues. The Agreed Statement of Facts and Issues (par 13) states:

12 On 14th September 2010, the Appellant’s [Mr Assange’s] counsel enquired in writing as to whether the Appellant was permitted to leave Sweden. On 15th September 2010, the prosecutor informed the Appellant’s counsel that he was free to leave Sweden […]

It then recites that the prosecutor had contacted Assange’s counsel about a date for interrogation in late September 2010 (par 14) and on 27 September the prosecutor ordered that Mr Assange should be arrested (par 15). He had left Sweden on 27 September (par 17) and he was planning to attend a lecture in Sweden in October (par 18). Telephone interviews were offered and declined (par 19). Mr Assange’s counsel had been unable to contact him (par 21) and following an appeal in Sweden a European Arrest Warrant (EAW) was issued on 26 November (par 30). This was certified invalid and later re-issued on 2 December 2010 (par 34). The Agreed Statement of Facts and Issues makes it clear that the prosecutor had informed Mr Assange, via his Counsel, that he was free to leave Sweden. On the basis of this, the ACMA is satisfied that the statements in the segment concerning Mr Assange’s permission to leave Sweden were accurate and presented in context. As the material is accurate, there is no need for the ACMA to separately assess the efforts made by the ABC to ensure accuracy. The ACMA also considers that factual content was not presented in a way that would have materially misled the audience. The comment by PS, Mr Assange’s lawyer, about Mr Assange leaving Sweden in good faith would be understood by the ordinary reasonable viewer to be his viewpoint or opinion. The surrounding statements about Mr Assange’s offer to return to Sweden were presented as contestable in the report by the subsequent statements from CB saying that he didn’t know, and didn’t believe that Mr Assange was willing to come back. In this context, the ACMA considers that the statement is an expression of opinion that was accurately conveyed rather than a statement of fact and is therefore not subject to the accuracy requirement in the Code. 6. Red Notice (14:00)

The complaint is that the segment conveyed ‘completely wrong information’ as to ‘what constituted a Red or Orange notice’. The segment ‘just accepted the false claims of Assange lawyers’. The relevant statements concerning the Swedish prosecution’s issue of a Red Notice (in bold) were:

REPORTER: Assange was at his peak, working with some of the most prestigious and influential media outlets in the world - including the Guardian and New York Times. But ominously, 12 days after giving Assange clearance to leave the country, the Swedes issued a warrant for his arrest. Three weeks later WikiLeaks launched the third big hit against America: The Iraq War Logs.

Then the Swedish prosecutor upped the ante - with Assange now working on the release of the biggest and most sensitive cache of US cables yet, Sweden issued an Interpol Red Notice for his arrest.

JR: You only need to look at the way that Red Notices are used around the world. Red Notices are normally the preserve of terrorists and dictators. The president of Syria does not have a Red Notice alert. Gaddafi in Libya, at the same time Julian's arrest

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 13 Error: Reference source not found

warrant was issued, was not subject to a Red Notice but an Orange Notice. It was an incredibly... it was incredibly unusual that a Red Notice would be sought for an allegation of this kind.

REPORTER: The timing of the Red Notice could not have been worse. US Army soldier Bradley Manning had allegedly leaked more than a quarter of a million classified documents, and Julian Assange was anxious to get them out. They became known as Cablegate.

In the context of the description of the permission for Mr Assange to leave Sweden being followed by the issue of a warrant for his arrest, the ACMA considers that:  The ordinary reasonable viewer would have understood the reference to ‘upped the ante’ by issuing a Red Notice, to mean the Swedish prosecutor had taken another procedural step to secure a further interview. This factual matter is not in dispute.  Having regard to the tenor and tone of the statement and surrounding statements, the comments from JR, Mr Assange’s UK lawyer about the issue of a Red Notice being unusual was an expression of opinion, accurately reported. Accordingly, there is no requirement to consider the accuracy requirement in the Code in relation to this statement. 7. Statements about onward extradition to the United States - Back doors (17.15) Asylum from Sweden (31:44) Sweden and espionage extraditions (32:00) US allegations of espionage (33.42) The complaint is that:  The program speculates the onward extradition to the US for espionage, however, ‘Sweden does not extradite for military or political crimes...’ as suggested by the program.  ‘Four Corners have obtained Grand Jury evidence which mentions national defence which is espionage which Sweden doesn’t extradite for’.  While Mr Assange claims he could not claim asylum once in Sweden, ‘Sweden can and does offer asylum from the USA...’ The relevant statements (in bold) were:

PRESENTER:

[...]

When it emerged that two young Swedish women were pressing charges against him, alleging rape and molestation in somewhat curious circumstances, and extradition proceedings began in the British courts, Assange alleged that America was somehow manipulating the whole process behind the scene, in order to in turn extradite him back to the US to face the judicial music there.

[...]

REPORTER: Though the task force found that Assange had broken no law, his more immediate worry was that his extradition to Sweden would be a backdoor to onward extradition to the United States.

14 [...]

REPORTER: Assange, still hunkered down in the London embassy, has no doubt what his fate will be if he is extradited [to Sweden].

JULIAN ASSANGE (on phone): If I was suddenly taken to Sweden, I would not be in a position to apply for political asylum in relation to United States. It would be the end of the road. I would just be taken from one jail to another.

JR: The US has said specifically, the US ambassador to London said, they would wait to see what happened in Sweden. And so we are very concerned about the prospect that once matters are resolved in Sweden, he will, there will be an extradition request from there and he will not be able to travel home to Australia and will have to fight extradition in the Swedish courts.

REPORTER: The US Ambassador to Australia suggests that Washington isn't interested in the Swedish extradition.

[JB], US AMBASSADOR TO AUSTRALIA (May 2012): It's not something that the US cares about, it's not interested in it, it hasn't been involved in it - and frankly, if he's in Sweden, there's a less robust extradition relationship than there is between the US and the UK, so I think it's one of those narratives that has been made up - there's nothing to it.

MR, US LAWYER ASSANGE: That's diplomatic speak. That doesn't mean anything. Their last statement three days ago by their spokesperson Linn Boyd says we are continuing our investigation of WikiLeaks. So you can't accept those words.

REPORTER: [MR], Assange's New York lawyer, believes there's an easy solution to the issue.

MR: If they flatly said, "We do not, we will not prosecute Julian Assange" that would be a very different kind of statement – and, and, in my view, is they should [say] that. I think they should say it, one, because then Julian Assange could leave the Ecuadorian Embassy, go to Sweden, deal with Sweden and continue on with his life.

[...]

REPORTER: Assange's primary concern is that the Australian Government has never properly addressed the central question: the near certainty that a Grand Jury is investigating WikiLeaks and the possibility of him being charged.

JR: We are very concerned about the very prospect of potential extradition to the US. We need only look to the treatment of [BM]. He's been held in pre-trial detention for more than two years now, in conditions for a large part of that detention which the UN Special Repertoire said amount to torture. We are very concerned about the prospect of him ending up in the US, and the risk of onward extradition from Sweden was always a concern and remains a concern.

[...]

The program also features the condemnation by the then US Secretary of State of WikiLeaks’ activities and reports of threats to US national security, followed by calls for Mr Assange’s death.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 15 Error: Reference source not found

The ACMA considers that:  The question of onward extradition to the United States is clearly presented as a central concern of Mr Assange and his legal advisors.  The views of his UK and US lawyers are presented as their professional opinions.  The question of whether he would be extradited is presented as contestable through the quote from the US ambassador to Australia.  It is made clear through the reference by JR to the US Ambassador’s comment, and through the statements of MR, that a decision to prosecute and on what grounds has not been made in the US.  Although MR refers to a Grand Jury examining the issue of espionage, the possible ground on which Mr Assange and his lawyers consider he might be extradited is not specified and is left open.  As noted by the complainant, the treatment of the onward extradition from Sweden to the US is speculation.  The question of asylum once in Sweden is Mr Assange’s personal opinion as to what he might be in a position to do in the future, rather than a factual statement about the operation of Swedish asylum laws. Accordingly, the ACMA does not regard the material complained of as factual but rather as contestable viewpoint or opinion. Such material is not subject to the accuracy provision of the ABC Code and there is no dispute that these viewpoints or opinions were accurately presented. The ACMA is satisfied that the question of onward extradition to the US is conveyed as an expression of opinion and it was accurately reported. 8. Are rape victims allowed to smile? (22.50)

The complaint is that PS ‘appears to state that there is some sort of standard formula that rape victims should follow after being raped’. The ABC has submitted that it is unaware of any such statement being made in the broadcast. The relevant statements by PS concerning the demeanour of the witnesses (in bold) were:

PS: You shouldn't write such text messages if you had been raped by that person the night before.

[...]

This was broadcast during the introduction of the segment and immediately followed by:

CB: I will not tell any media of how I am going to represent the women in court. I'm sorry.

The reporter then briefly describes Mr Assange’s encounters with SW and AA in Sweden and some of their texts and comments to others. PS comments that the sex between Mr Assange and each woman was consensual. Later in the broadcast the reporter recounts the details of Mr Assange’s business and social activities with AA including his overnight stays with her during a Swedish Brotherhood Conference during which they had intercourse (noting that AA would later tell police he ‘had

16 violently pinned her down and ignored her requests to use a condom’), their attendance at a crayfish party which AA organised for him and her tweets to others about Mr Assange. The introductory interview with PS is then repeated:

PS: Well, if you send text messages like that, ‘I've just spent some time with the coolest people in the world’, the night after you then say you were raped - I mean you shouldn't write such text messages if you had been raped by that person the night before.

REPORTER: Your client described Julian Assange as a ‘cool man’. I think, one of the ‘coolest men in the world’ that she'd had in her bed.

An interview follows with CB, repeating his comment in the introduction that he will not talk about how he will ‘represent the women in court’. The reporter challenges him on how it might look like a ‘fix up’ or as though Mr Assange was being set up. The segment continues with the reporter recounting AA and Mr Assange’s attendance together at a dinner party organised by the Pirate Party and comments from the host RF, followed by:

REPORTER: Four Corners has obtained a photograph, lodged with police investigators, from that evening. [AA] is on the left. Afterwards, Assange would again spend the night at her apartment.

In the photograph AA appears to be smiling. The ACMA considers that the statements concerning the demeanour of the witnesses were factual material. These statements were specific, unequivocal and capable of independent verification. The ACMA also considers that:  Although there are no direct remarks about whether ‘rape victims are allowed to smile’, the depiction of Mr Assange and each of SW and AA as amicable during the period that gave rise to their claims of rape clearly features in the segment.  In the context of other statements in the program, the ordinary reasonable viewer would also have understood that Mr Assange and his lawyers believed that that the women had been manipulated, and that the rape case was created to damage WikiLeaks and to facilitate Mr Assange’s extradition to Sweden and from there to the United States of America. The treatment of sexual assault victims is clearly a sensitive matter. However, the allegations by SW and AA women against Mr Assange were central to the events reported. It is clear in the program both that these allegations are made and that they are contested and will likely be the subject of further investigations and court proceedings. The ACMA is satisfied that the material concerning the demeanour of the women was accurate and presented in context. As the material is accurate, there is no need for the ACMA to assess the efforts taken by the ABC to ensure accuracy. In addition, factual content was not presented in a way that would have misled the audience. Accordingly there is no breach of standards 2.1 or 2.2 of the Code. 9. Lawyer v malsagarbitrade (23:15)

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 17 Error: Reference source not found

The complaint is that ‘while CB is a qualified and practising lawyer, his role in this case is one of “malsagarbitrade” to the two women [...] To call him the ‘lawyer’’ for the two complainants could give quite the wrong impression to an English-speaking audience who are unfamiliar with the role of the “malsagarbitrade”’. The relevant content is the caption given to CB: ‘lawyer’. The ACMA notes the following statements were made by CB in the broadcast:

CB: I will not tell any media of how I am going to represent the women in court. I'm sorry.

CB: I will argue in court. I have of course arguments concerning exactly what you're talking about now, but I will not tell any media of how I am going to represent the women in court. I'm sorry.

The ACMA considers that this was factual material. It was specific, unequivocal and capable of independent verification. Having regard to the statements above, the ACMA considers that:  The reference to CB as the ‘lawyer’ for the two women is not inaccurate and was a reasonable description in the circumstances.  As noted in the complaint, CB is a lawyer.  There are various sources available in the public domain referring to CB as the lawyer representing the two women.6

Accordingly, the material facts were accurate and presented in context. As the material is accurate, there is no need for the ACMA to assess the efforts taken by the ABC to ensure accuracy. In addition, the factual content was not presented in a way that would have materially misled the audience. 10. Leaks real and otherwise (28:15)

As noted above, the ACMA’s investigation is confined to those matters raised with the ABC in the first instance. The relevant complaint to the ABC is that, contrary to what the reporter states, there were no documents leaked by the authorities to the tabloids; an unknown party gave the media the full details: ‘The Expressen called the original prosecutor with the full details ready to hand, and she confirmed that Mr Assange had been arrested in absentia. She should not have done this.’ The media then applied for police statements under freedom of information processes and the police were obliged to release (redacted) copies. The complainants suggest that unredacted copies were subsequently provided to the press by Mr Assange’s lawyers and that this is the ‘real leak’. The relevant statements (in bold) were:

6 http://www.theguardian.com/media/2010/dec/08/julian-assange-rape-allegations and http://www.dailydot.com/news/julian-assange-wikileaks-prosecutor-marianne-ny/

18 Reporter: The Prosecutor's Office might not have contacted Assange but within hours they let the whole of Sweden know what was going on - leaking to the Expressen tabloid the statements of [AA] and [SW]. The newspaper front page read: "Assange hunted for rape in Sweden".

JR: Julian wakes up the following morning to read the newspapers to hear that he's wanted for double rape and he's absolutely shocked.

TM: Two of our reporters had information about Julian Assange, and we also had a confirmation from the prosecutor which confirmed, on record, that there was a police investigation against Julian Assange.

REPORTER: It was now the case took a strange twist. Within 24 hours, a more senior prosecutor dismissed the rape allegations, leaving only the lesser accusation of molestation. Assange willingly went to the police on August 30th and made a statement.

During the interview he expressed his fears that anything he said would end up in the tabloid newspaper Expressen. The interviewing police officer said: "I'm not going to leak anything." The interview was leaked.

PS: Why did you leak his name to a tabloid paper?

The statements concerning material provided to the press by the Prosecutor’s Office (namely ‘confirmation...on the record, that there was a police investigation’ and ‘the statements’) were factual material. They were specific, unequivocal and capable of independent verification. Information in the public domain verifies that the original on-duty prosecutor confirmed with the press that there was an investigation against Mr Assange7. This was confirmed in the segment, by TM of Expressen, as taking place on the record, and is not disputed by the complainant. Accordingly, there is no question as to the accuracy of the statements made about the Prosecutor’s Office confirming the investigation. The position with respect to the various statements is more complex. The ABC submitted that the reporter did not say that documents were leaked by authorities to the tabloids, and that the content of ‘statements’ (the word used in the program) could be leaked verbally. It further submitted that:  The Prosecutor’s Office confirmed to Four Corners that it had provided information to Expressen.  The Prosecutor’s Office also confirmed that there was an Ombudsman investigation on foot into the leaking of Mr Assange’s name and information relating to him (though this confirmation was not broadcast). The confirmation did not specify the individual or agency being investigated.  The Expressen reporters knew that something had happened to Mr Assange, but it was only after contacting the Prosecutor’s Office that they discovered the nature of the alleged offences described in AA and SW’s statements. The ACMA has no material which would enable it to assess the nature of any unauthorised disclosure of information by authorities to the press. It has focussed on the particular question raised by the complaint to the ABC of whether the segment accurately represented that documents had been leaked by the Prosecutor’s Office to the press. In that regard, it accepts

7 http://edition.cnn.com/2010/WORLD/europe/08/24/sweden.wikileaks.assange/

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 19 Error: Reference source not found that the ordinary reasonable viewer would have understood that ‘leaking’ a statement did not necessarily involve providing a copy of a document. The ACMA is satisfied that, on this issue, the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context, and did not present factual content in a way that materially misled the audience. Accordingly, the ABC met its obligations in respect of standards 2.1 and 2.2. 11. Appealing a decision (28.57)

The complaint is that the reporter states that the case being re-opened was a ‘strange twist’, however, In Sweden, a case decision can be appealed. The reporter didn’t ‘manage to uncover this aspect of the standard legal process’. The relevant statements (in bold) were:

[...]

PS: Why did you leak his name to a tabloid paper? How, how can you drop the case and reopen the case and how can you, how can you not say that he waited for five weeks in Sweden voluntarily to participate in the investigation? Why do you have to arrest him? Why do you have to keep him in handcuffs? Why can't you conduct this in a proper manner? The rest of the world sees it, but Sweden unfortunately does not. [...]

REPORTER: Can you understand that the Australian people may not understand how somebody can be accused in their absence when they haven't even been interviewed, then have that rape case dropped, the arrest warrant removed and then have it re-instituted, all in the space of a few days?

KR: Yeah I can very well understand the confusion and, and, that is very difficult to understand, well, exactly how it works.

REPORTER: Well you call it confusing, it's, it may be slightly more than that.

KR: Well that's the way it works here in Sweden so, well. But I can understand the confusion, definitely.

The ACMA considers that statements made by the reporter in reference to the case being dropped and then re-instituted were factual material. These statements were specific, unequivocal and capable of independent verification.

20 The Agreed Statement of Facts and Issues verifies that the rape case was dropped and re- opened while Mr Assange was in England, and that an initial arrest warrant was cancelled. It states that the formal reports were filed as: rape and molestation (par 5); on 20 August 2010 the prosecutor ordered that Mr Assange be arrested (par 6); on 21 August at the conclusion of interviews with SW and AA, the chief prosecutor cancelled the arrest warrant ‘having made the assessment that the evidence did not disclose any offence of rape (against SW)’ (par 7). The preliminary investigation continued in respect of whether the conduct alleged by SW could constitute some lesser offence (par 8); on 25 August the chief prosecutor determined that the conduct alleged against SW disclosed no crime at all and the preliminary investigation would continue in regard to AA on suspicion of the offence of ‘molestation’ (par 9). On 27 August counsel for SW and AA appealed the chief prosecutor’s decision (par 11); on 30 August Mr Assange was interviewed in respect of the molestation allegations (par 10); Mr Assange left Sweden on 27 September (par 17); on 1 September the senior prosecutor decided that the SW investigation would be resumed under the offence of ‘rape’ (par 11); on 24 November a detention order was appealed in Sweden and upheld but the allegations concerning SW were reduced to ‘minor rape’ (par 28). The ACMA considers that:  The facts concerning the dismissal of the rape case, the appeal against this, Mr Assange’s interview in respect of ‘molestation’ allegations and the resumption of the rape allegations and reduction to ‘minor rape’ during his absence from Sweden are verified.  The references by Mr Assange’s UK and Swedish lawyers to concerns over the circumstances leading to his arrest and the propriety of the conduct of the processes, are presented as their professional opinions. The reporter’s comment that this was a ‘strange twist’ is an expression of viewpoint or opinion, which is contextualised by his reference to Australians not understanding such processes and KR’s (the prosecutor’s) concession that it is confusing. It is clearly judgmental or contestable. The ACMA is satisfied that the material facts were accurate and presented in context. As the material is accurate, there is no need for the ACMA to assess the efforts taken by the ABC to ensure accuracy. In addition, the factual content was not presented in a way that would materially mislead the audience. Further, expressions of opinion were conveyed accurately.

12. Extradition, deportation and rendition (43.20) RF (43:27)

The complaint is that ‘there is no dispute that Sweden acted illegally in deporting the two Egyptian men, but it was deportation not an extradition’; the Egyptian men were not Swedish citizens. Sweden has not extradited a person to the US for a military or political crime in the past 50 years, and the expulsion to Egypt was not in compliance with US wishes. The relevant statements were:

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 21 Error: Reference source not found

REPORTER: Once in Sweden he’d be at the mercy of a system which has a record of complying with US wishes. And there's evidence that Sweden has acted illegally in past extraditions involving the US.

RF: Sweden has frankly always been the United States' lap dog and it's not a matter we are particularly proud of. The Swedish Government has, essentially, whenever a US official says, "Jump", the Sweden Government asks, "How high?"

REPORTER: If that seems like a heavy handed comment, there's evidence to back it up.

RF: There was a famous case, last decade, where a couple of Swedish citizens were even renditioned by the CIA in a quite torturous manner to Egypt where they were tortured further, which goes against every part of Swedish legislation, every international agreement on human rights, and not to say human dignity.

REPORTER: A United Nations investigation later found against Sweden. The country was forced to pay compensation. For Assange, coupled with his other experiences of the Swedish judicial system, it is perhaps understandable that he fears ending up in Sweden.

This follows first-hand accounts by two people who have allegedly been questioned by the US FBI on their associations with WikiLeaks and Mr Assange when travelling to the USA, and JR who believes she has been placed on the US Homeland Security ‘inhibited list’. The reporter’s statement ‘evidence to back it up’ was accompanied by a still image of the cover of an Amnesty International report (the Amnesty Report), which appeared onscreen entitled: ‘Sweden: The case of Mohammed El Zari and Ahmed Agiza: violations of fundamental human rights by Sweden confirmed8’.

The ordinary, reasonable viewer would have understood the statements to mean that, with the involvement of the US, the Swedish Government had illegally, renditioned or extradited two Swedish citizens to Egypt, and the United Nations had found against the Swedish Government over this. The ABC has provided dictionary definitions of the terms ‘rendition’, ‘extradition’ and ‘deportation’. It also provided Four Corners’ understanding of the circumstances of the handover of the Egyptian men to the US CIA by the Swedish Secret Security service as part of a terror suspect ‘rendition’, and the subsequent investigations by the Swedish Parliamentary Ombudsman and UN Human Rights agencies, and award of compensation. It notes that the description of the two Egyptians as Swedish citizens was incorrect and that an editor’s note has been placed on the online transcript of the report. The statements concerning the two Egyptians are factual matter, capable of independent verification. The facts are verified by material in the public domain. The Amnesty Report confirms that on 18 December 2001,on the basis of US and Egyptian intelligence provided to Säpo (Sweden’s Security Police), the Swedish Government executed an expulsion order and the two Egyptian men were picked up by Säpo and flown in a CIA leased plane to Egypt.9

8 http://www.amnesty.org/en/library/info/EUR42/001/2006

9 http://www.amnesty.org/en/library/asset/EUR42/001/2006/en/97edf527-d3d2-11dd-8743- d305bea2b2c7/eur420012006en.pdf

22 Two United Nations Human Rights Committee reports have found that Sweden had acted illegally in ordering the expulsion and deportation of the men on 18 December 2001 on the basis of intelligence services’ information of involvement in an organisation implicated in terrorist activities, resulting in orders for expulsion.10

The ACMA considers that:  The segment reported the concerns of Mr Assange and his legal team that he would be extradited to the US if he returned to Sweden. The segment did not purport to examine Sweden’s history regarding extraditions.  Sweden has in the past been found to have acted illegally in relation to the expulsion of non-Swedish citizens to Egypt and the US had some involvement in that case as it provided intelligence and a CIA flight.  The references to Sweden ‘having a record’ and to ‘there’s evidence to back it up’ refer to the case of the past expulsion to Egypt, and numerous cases are not required to support the existence of such a record.  Having regard to the context in which it was made, the reference to ‘Sweden complying with US wishes’ is presented as an opinion as to the nature of US involvement in that case and Sweden’s acquiescing to US wishes would be understood to be contestable and judgemental.  In the context of material presented throughout the segment concerning Mr Assange’s fear of extradition, the terms ‘extradition’ and ‘rendition’ were used synonymously to mean forcible delivery or surrender of a person from one authority to another, rather than in a strict judicial sense, and also fell within the broader term ‘deportation’.  RF’s comments about Sweden being the United States ‘lapdog’ and saying ‘how high’ when the US says ‘jump’, were contestable and judgmental in nature and presented as RF’s opinion or viewpoint rather than fact. RF’s reference to the Egyptians as Swedish citizens is factually incorrect, as acknowledged by the ABC. However, the ACMA accepts the ABC’s submission that the reference to the two Egyptian men as Swedish citizens would not have materially misled the audience. The broadcast focused on Sweden’s actions in relation to the two men who were expelled on the basis of terrorism allegations, as opposed to their status as Swedish citizens or otherwise, and in this case neither Mr Assange nor the Egyptians were Swedish nationals. The ACMA finds that in relying on the Amnesty International report and the United Nations report, the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context. In addition, the factual content was not presented in a way that would have materially misled the audience. Accordingly, there was no breach of standards 2.1 and 2.2.

10 http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=42ce734a2&skip=0&query=agiza (pars 2.5 & 3.8-3.9)

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 23 Error: Reference source not found Issue 2: Impartiality

Relevant Code clauses

4.1 Gather and present news and information with due impartiality

4.5 Do not unduly favour one perspective over another Relevant Principles in relation to impartiality and diversity of perspectives include the following: Judgements about whether impartiality was achieved in any given circumstances can vary among individuals according to their personal and subjective view of any given matter of contention. Acknowledging this fact of life does not change the ABC’s obligation to apply its impartiality standard as objectively as possible. In doing so, the ABC is guided by these hallmarks of impartiality:

 a balance that follows the weight of evidence;

 fair treatment;

 open-mindedness; and

 opportunities over time for principal relevant perspectives on matters of contention to be expressed. [...] Impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented. Assessing the impartiality due in given circumstances requires consideration in context of all relevant factors including:

 the type, subject and nature of the content;

 the circumstances in which the content is made and presented;

 the likely audience expectations of the content;

 the degree to which the matter to which the content relates is contentious;

 the range of principal relevant perspectives on the matter of contention; and

 the timeframe within which it would be appropriate for the ABC to provide opportunities for the principal relevant perspectives to be expressed, having regard to the public importance of the matter of contention and the extent to which it is the subject of current debate. The considerations which the ACMA has regard to in assessing the ABC’s compliance with standard 4 of the Code are found at Attachment E.

Submissions Relevant extracts from the submissions of the complainants and the ABC are at Attachments C and D respectively.

24 Finding The ABC did not breach standards 4.1 and 4.5 of the Code.

Reasons As indicated at Attachment E, achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgment, or giving effect to the affections or enmities of the presenter or reporter who plays a key role in setting the tone of the program, through their style and choice of language. A program that presents a perspective that is opposed by a particular person or group is not inherently partial. Whether a breach of the Code has occurred will depend on the themes in the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast. In this case, the segment explored the circumstances surrounding the allegations made against Mr Assange and the warrant for his arrest. A central theme is his concern, and that of his lawyers, that if he returned to Sweden he would be extradited to the US in relation to his WikiLeaks activities. The complainants’ concerns about impartiality arise from the alleged inaccuracies, the omission of information, and the favouring of one perspective, that of Mr Assange. One of the complainants submitted:

My proposition is that the entire program is skewed very heavily towards presenting only Julian Assange’s perspective while ignoring the legitimacy of the Swedish case or the perspective of the two Swedish women who made the allegations.

For the reasons outlined above, the ACMA considers that factual material and opinions were presented accurately. The ABC submitted that ‘the report included a broad range of principal relevant perspectives, none of which were unduly favoured over any other. It is important to understand that impartiality does not require that every perspective requires equal time, nor that every facet of every argument is presented’. As indicated above, a program that presents a perspective that is opposed by a particular person or group is not inherently partial. In this case, the ABC presented Mr Assange’s experience of the allegations of rape and sexual assault and his fears (whether founded or not) about potential onward extradition to the US. The ABC is entitled to present and explore Mr Assange’s perspective, as long as the material has been presented accurately, doesn’t convey a prejudgement and does not unduly favour one perspective over another. The ABC also submitted that AA and SW were invited to be interviewed for the program but declined. The ACMA notes that their perspectives in terms of the allegations made against Mr Assange are presented through CB, the lawyer representing the two women, and to some extent interviews with the Swedish Prosecutor’s Office. In reference to RF, the complainants also queried RF’s qualifications to participate in the program. The ACMA accepts the ABC’s submission that ‘as a person with a close association to Assange and who is a member of the Swedish Parliament, [RF] presented a principal

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 25 Error: Reference source not found relevant perspective on the issues examined in the report. The ACMA also notes that RF was an eyewitness to some of the key events dealt with in the segment and the inaccurate statement made by RF in reference to the two Egyptian men as Swedish citizens has been acknowledged and corrected by the ABC. In terms of the overall presentation of the segment, the ACMA makes the following observations:  The reporter maintained a relatively neutral tone throughout the broadcast and did not use sustained emotive or colourful language. The ACMA considers that the language and tone did not convey any prejudgment, nor did it appear to give effect to any affections or enmities.  The segment made it very clear that there were opposing views. As indicated in the Code’s Principles above, impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.  While the majority of those interviewed in the segment supported Mr Assange, the reporter also interviewed the representative of the two women who made the allegations against Mr Assange and the segment broadcast footage of the US Ambassador to Australia commenting on the alleged US extradition of Mr Assange from Sweden.  The fact that equal time was not allocated to each side does not indicate that the broadcast was biased. The ACMA considers that viewers would have been aware that there were conflicting views. The ACMA is satisfied that the broadcast exhibited due impartiality and did not unduly favour one perspective over another. Accordingly, the ABC did not breach standards 4.1 or 4.5 of the Code in relation to the broadcast.

26 Decision The Australian Communications and Media Authority determines for the above reasons that the Australian Broadcasting Corporation, in relation to the broadcast by ABN Sydney of Four Corners on 23 July 2012, did not breach standards 2.1, 2.2, 4.1 and 4.5 of the ABC Code of Practice 2011.

The Common Seal of the Australian Communications and Media Authority was affixed to this document in the presence of:

______Signature of Member Signature of

______Name Name

Dated this______day of January 2014

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 27 Error: Reference source not found

Attachment A Transcript – ‘Sex, Lies, and Julian Assange’ - Monday 23 July 2012

PRESENTER: He humiliated the most powerful country in the world. But his relationship with two Swedish women, and their claims of sexual assault, may yet destroy Julian Assange.

PS, SWEDISH DEFENCE LAWYER FOR ASSANGE: You shouldn't write such text messages if you had been raped by that person the night before.

CB, LAWYER FOR AA & SW: I will not tell any media of how I am going to represent the women in court. I'm sorry.

PRESENTER: Sex, lies, the Swedish justice system, the founder of WikiLeaks and, somewhere in the background, an angry and embarrassed US government, a tangled web indeed. Welcome to Four Corners.

Julian Assange may have suspended his fate at the hands of a Swedish court by claiming political asylum in the Ecuadorian embassy in London, but the Swedes are not going away anytime soon. Nor are the British police, who are waiting to arrest him and extradite him to Stockholm the minute he attempts to leave his temporary sanctuary. Assange's troubles in Sweden go back almost exactly two years. The first sensational intelligence and diplomatic leaks had already hit the public domain. In the American government's eyes, Assange had become public enemy number one. But for many others around the world, he was a cause célèbre. But for all their power and influence in the world, they had seemed impotent to stop the leaks, or somehow make Assange pay for what they saw as espionage.

On the assumption that Assange can't wait in his Ecuadorian sanctuary forever, and while we await the outcome of that standoff, Four Corners has gone back to Sweden, where the drama began, to pin down what actually happened there, and take a closer look at the inconsistencies in the various versions of events. Here is [Reporter's] report.

REPORTER: In late 2009 WikiLeaks set up home in the Iceland capital of Reykjavik. It was a perfect fit. Iceland has world class internet. Its constitution forbids censorship. Julian Assange was made welcome. It was here that Assange received the first leaked cable of the now famous Cablegate documents. It centred on the US embassy in Reykjavik. [BJ], an Icelandic MP was working with WikiLeaks. She received an invitation to a cocktail party at the Embassy

BJ, MP, ICELAND: Cocktail parties are mind-numbingly boring, and I only go if I have a reason. So I actually decided, I thought it was sort of funny and I'm a bit of a prankster sometimes, so I decided it would be quite funny for me to go with one of the WikiLeaks people to the Embassy.

REPORTER: She invited Julian Assange, but on the day of the cocktail party she couldn't find him. [BJ] decided not to go, but Assange did.

In a moment of monumental chutzpah Julian Assange inveigled his way into the cocktail party here at the US embassy. He struck up a conversation with US diplomat Sam Watson. Several weeks later Assange published confidential cables authored by the very same diplomat. Now

28 Sam Watson hadn't leaked and neither had any of the other US Embassy staff. Nonetheless, there was a massive internal investigation.

BJ: I think that many people thought that he had actually gone in and mysteriously sucked out the cables with some spy device or something.

REPORTER: Once the document came out, it was convenient to say it might have come from the Embassy?

BJ: Of course, yeah.

REPORTER: Which would have driven the United States intelligence agencies crazy trying to find out where this leak came from?

BJ: Yes. Well you know, they all need to have a reason to earn their bread.

REPORTER: It was the first act of humiliation by WikiLeaks of the world's greatest superpower, but it was nothing compared to what was to come: Collateral Murder; the gunning down of unarmed civilians in a Baghdad street; and the Afghan War Logs. Eight months after his taunting of the US in Iceland, Assange landed in Sweden. He was now a cyber-celebrity.

TM, EDITOR, EXPRESSEN NEWSPAPER: I would say he was, it was a like a pop star, ah, arriving in Sweden. He made public appearances and many media companies wanted to, to talk about, talk with him about eventual co-operation with WikiLeaks.

REPORTER: Assange had come to Sweden to speak at a conference, but he was also there for more intriguing reasons - to negotiate the use of a former underground nuclear fall-out shelter that stores Internet servers. It would provide first class security against the prying eyes and ears of the world's intelligence agencies. The bomb shelter houses the computer hardware of [RF]’s Swedish Pirate Party.

RF, SWEDISH PIRATE PARTY: We contacted them first, as in just offering server space - right?

REPORTER: It might sound like a whacky organisation, but in Sweden it's taken seriously enough to have a member in the European Parliament. The Party's close to WikiLeaks.

RF: So we knew about them, they knew about us. We saw they were in trouble and we said, "Hey guys we might be able to help you out here."

REPORTER: [RF] offered WikiLeaks some space in the bunker.

RF: It's an amazing place, to be honest. But, yeah, that's where we offered them hosting space. I don't know how they're using it. I shouldn't know how they're using it. That would interfere with my interests. But I understand it got quite some attention worldwide that WikiLeaks is now hosted in a nuclear bomb-proof fallout shelter.

REPORTER: Assange was on a roll. Stockholm August 16th, 2010, Julian Assange caught a train from the Central Station. All the years of hard work were finally paying dividends for Julian Assange. Collateral Murder had been released, so too had the Afghan War Logs. But what would happen in the next few days would derail the WikiLeaks juggernaut.

Assange was not travelling alone. His companion was [SW], a 26-year-old admirer. As Assange and [SW] left the train to spend the night together, they could have no idea of the repercussions that would flow from their one night stand. Assange's life would later descend into turmoil.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 29 Error: Reference source not found

Two days earlier, the faithful and adoring had gathered at the L.O. building - Stockholm's Trade Union Headquarters. In the audience were two women: [SW] - in the pink cashmere sweater - and [AA]. Assange was staying at [AA]’s flat. They'd slept together the previous night. Later she would tell a friend she had a "wild weekend" with Assange.

[SW] was enthralled by the Assange phenomena - she texted during his talk, "He looked at me!"

PS: He came to Sweden on the 11th of August 2010, and he had this apartment where one of these women lived. She was supposed to be away so he could stay there, but she came home on the Friday night - 13th of August - and then they had consensual sex and he continued to stay in that apartment until the 18th of August. But in the meantime he made acquaintance with the other woman, and and one night he travelled to her town in Sweden and they had co-co-co -

REPORTER: Consensual.

PS: Consensual sex.

REPORTER: [AA] and [SW] went to Central Stockholm's Klara police station to see if they could compel Assange to take an STD test should he refuse.

PS: But the police interpreted what one of the girls said as some sort of sex crime having been committed and that resulted in a prosecutor the same night issuing a warrant of arrest for Julian.

REPORTER: It would become a tabloid journalist's dream: sex, politics and international intrigue.

(to TM) How big a story has the Assange case been here?

TM: The Assange story has been huge, of course.

REPORTER: [TM] is the Editor of Expressen.

TM: The story has so many aspects. You have the political question whether this is a case created to damage WikiLeaks.

REPORTER: At the time though, [TM] thought it was little more than salacious scandal.

TM: I think that many people - in the beginning, people were, like, shaking their heads, thinking that if you are innocent, well in that case, this is, cannot be a problem. Just show up, say that you're innocent and you will most probably be cleared, if that's the case.

30 PS: In mid-September he got a message from his then-lawyer, but the prosecutor did not want him and that he was - for an interview - and that he was free to leave Sweden, and under that assumption he left Sweden in the afternoon of the 27th of September in good faith that he had sought for and got approval from the prosecutor to leave the country.

REPORTER: Assange made his way to London, holing up at the Frontline Club for journalists. He had unfinished business with America.

JULIAN ASSANGE, EDITOR-IN-CHIEF, WIKILEAKS (October, 2010): This disclosure is about the truth.

Then the Swedish prosecutor upped the ante - with Assange now working on the release of the biggest and most sensitive cache of US cables yet, Sweden issued an Interpol Red Notice for his arrest.

JR, UK LEGAL ADVISOR TO ASSANGE: You only need to look at the way that Red Notices are used around the world. Red Notices are normally the preserve of terrorists and dictators. The president of Syria does not have a Red Notice alert. Gaddafi in Libya, at the same time Julian's arrest warrant was issued, was not subject to a Red Notice but an Orange Notice. It was incredibly, it was incredibly unusual that a Red Notice would be sought for an allegation of this kind.

JULIAN ASSANGE (September 2011): There are so many thousands of stories that have come from that and have influenced elections and have been involved in the course of revolutions.

HILLARY CLINTON, US SECRETARY OF STATE: The United States strongly condemns the illegal disclosure of classified information. It puts people's lives in danger, threatens our national security, and undermines our efforts to work with other countries to solve shared problems.

REPORTER: An outraged Washington set up a crack team of Pentagon investigators to take on WikiLeaks. It even launched a legally questionable financial blockade to starve WikiLeaks of funds. For America, Cablegate was the final straw. Some even wanted Assange dead.

(Excerpt from Fox News, December, 2010)

FOX PANELLIST: This guy's a traitor, a treasonous, and, and he's broken every law of the United States, the guy ought to be, and I'm not for the death penalty, so if I'm not for the death penalty there's only one way to do it: illegally shoot the son-of-a- bitch.

FOX PRESENTER: Paul what about it?

FOX PANELLIST II: This little punk. Now I stand up for Obama. Obama, if you're listening today you should take this guy out, have the CIA take him out.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 31 Error: Reference source not found

REPORTER: If Assange was looking for support from home, he didn't get it.

JULIA GILLARD, AUSTRALIAN PM (December 2010): I absolutely condemn the placement of this information on the WikiLeaks website. It’s a grossly irresponsible thing to do, and, an illegal thing to do.

REPORTER: The then-Attorney-General threatened to revoke his Australian passport. It was only because the Federal Police believed that Assange's passport was the best way to track him that he kept it.

JULIAN ASSANGE (September 2011): Well the Prime Minister and the Attorney- General are US lackeys. I mean, it's a simple as that. They had a whole of government task force involving every intelligence agency and the Australian Federal Police and the Department of Defence and him, trying to work out how to deal with WikiLeaks and me personally.

REPORTER: Though the task force found that Assange had broken no law, his more immediate worry was that his extradition to Sweden would be a backdoor to onward extradition to the United States.

For more than 500 days Julian Assange and his legal team fought his extradition. Through the magistrates courts to the High Court and on to the Supreme Court, the most powerful court in the land. But on June the 14th Julian Assange lost his final appeal. The Supreme Court ruled he'd have to be extradited. Five days later, Assange fled to the Ecuadorean Embassy in London.

Last month, we managed a brief phone call from a London hotel with Assange in the Embassy.

(On phone to Julian Assange) Ok, hang on, I'm just going to put the speaker phone on, one second, sorry.

He revealed why he was seeking political asylum.

JULIAN ASSANGE (on phone): Yes, there are a number of dramatic events that occurred just beforehand. First of all, the Swedish government publicly announced that it would detain me without charge in prison under severe conditions. On the same evening, the UK government security contractors that maintained the electronic manacle around my leg turned up unannounced at 10.30pm and insisted on fitting another manacle to my leg, saying that this was part of routine maintenance - which did not sound to be credible.

REPORTER: Assange sensed that the net was tightening around him.

JULIAN ASSANGE (on phone): Then the next day, the Crown Prosecution Service, acting we believe on behalf of the Swedish government, requested that the 14 days that I had to apply to the European Court of Human Rights, be reduced to zero.

REPORTER: Assange is safe all the time he remains inside the embassy. But once he steps out, it's almost certain he'll be arrested and extradited to Sweden.

PS: The minute he hits Swedish soil he will be arrested. He will be brought to a custody jail. He will be kept there in isolation for four days. He can only meet with me and my co-lawyer. On the fourth day he will be brought into a courtroom in handcuffs in front of a custody judge, and they will decide whether he will be kept in custody up until the final court case is tried, or if we if he will be released. I will try to get him released of course. But at least four days in Sweden in Swedish prison is - we can't avoid that.

32 REPORTER: At the heart of the matter is whether the Swedish judicial authorities will treat him fairly. Certainly, events so far provide a disturbing picture of Swedish justice. Using facts agreed between the defence and prosecution and other verified information, we have pieced together what happened during those crucial three weeks in August.

On August 11th, 2010, Assange arrived in Sweden to attend a conference organised by the Swedish Brotherhood, a branch of the Social Democratic Party. He was offered [AA]’s apartment while she was away, but [AA] returned home a day early on Friday the 13th. She invited Assange to stay the night, and they had sex. She would later tell police Assange had violently pinned her down and ignored her requests to use a condom. Assange denies this.

The following day, Assange addressed the conference with [AA] at his side. Later that afternoon [AA] organised the Swedish equivalent of a top-notch barbeque, a Crayfish Party. She posted a Twitter message. "Julian wants to go to a crayfish party. Anyone have a couple of available seats tonight or tomorrow?"

The crayfish party was held that night in a courtyard off her apartment. It went on until the early hours of the morning. [AA] tweeted at 2am: "Sitting outdoors at 2:00 o’clock and hardly freezing with the world's coolest, smartest people! It's amazing!"

A guest at the party would later tell Swedish Police the event was a very hearty evening. When he offered to put Assange up at his apartment, [AA] replied, "He can stay with me."

PS: Well, if you send text messages like that, "I've just spent some time with the coolest people in the world", the night after you then say you were raped - I mean you shouldn't write such text messages if you had been raped by that person the night before.

REPORTER: Your client described Julian Assange as a "cool man". I think, one of the "coolest men in the world" that she'd had in her bed.

CB: I will argue in court. I have of course arguments concerning exactly what you're talking about now, but I will not tell any media of how I am going to represent the women in court. I'm sorry.

REPORTER: But can you see how that looks as though -

CB Yes, of course I can.

REPORTER: It's a fix up. It looks as though they are in fact setting him up.

CB: I'm quite aware of that.

REPORTER: Sunday August 15th, the next day, Assange attended a dinner party at Stockholm's Glenfiddich restaurant, organised by Pirate Party founder [RF].

RF: I think a lot of people at the, the table had meatballs. I think Julian might have been one of them. Now, Swedish meatballs that, that's a little bit like mum's apple pie in Sweden - as in, you can call my wife ugly, you can kick my dog, but the instant you say something bad about my mother's meatballs I'm going to take it personal.

REPORTER: Also at the dinner was [AA].

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 33 Error: Reference source not found

(to RF) So, just to get this straight: Julian Assange arrived with [AA] and he left with [AA].

RF: Yep.

REPORTER: What was their behaviour like towards each other?

RF: Well, I was discussing mainly with Julian and the, again I can't go into too much detail here, but it was at least a very professional dinner. There were two high level organisations, both intent on changing the world behaving professionally.

REPORTER: The fact that [AA] accompanied Julian Assange to this dinner and left with him, what does that say to you?

RF: Well that's going into speculating on merits of extradition, and I can't really do that. I think that be, you're presenting an objective fact, as did I, and if people want to read something into that that's obviously ripe for doing so, but I can't spell it out.

REPORTER: Four Corners has obtained a photograph, lodged with police investigators, from that evening. [AA] is on the left. Afterwards, Assange would again spend the night at her apartment.

The following day, August the 16th, Assange had sex with [SW] at her apartment. According to police records, [AA] was aware that he had slept with [SW]. A witness told police he contacted [AA] looking for Assange. She texted back: "He's not here. He's planned to have sex with the cashmere girl every evening, but not made it. Maybe he finally found time yesterday?" That same day, the witness asked [AA], "Is it cool he's living there? Do you want, like, for me to fix something else?" According to the witness she replied: "He doesn't, like, sleep at nights so that's a bit difficult. So he has a bit of difficulty taking care of his hygiene. But it's ok if he lives with me, it's no problem."

KR, SWEDISH PROSECUTOR'S OFFICE: Well what happened is what was that the duty prosecutor got a phone call from the police and the duty prosecutor decided that he should be arrested.

REPORTER: And what happened?

KR: He was arrested in his absence, but he, they never got in, got in contact with him. But he was arrested in his absence. It's a technical, a technical thing in Sweden, Swedish law, yeah.

REPORTER: The Prosecutor's Office might not have contacted Assange but within hours they let the whole of Sweden know what was going on - leaking to the Expressen tabloid the statements of [AA] and [SW]. The newspaper front page read: "Assange hunted for rape in Sweden".

34 JR: Julian wakes up the following morning to read the newspapers to hear that he's wanted for double rape and he's absolutely shocked.

REPORTER: It is perhaps understandable that Assange had doubts he would receive fair treatment from the Swedish authorities. On September 15th, the prosecutor told Assange he was permitted to leave Sweden. Assange, back in England, would later offer to return within a month. The Swedish Authorities said too late - a second warrant had already been issued for his arrest.

(to CB) He says that he left the country and then was prepared to come back at any time. Is that your understanding?

CB: I don't believe that.

REPORTER: He says that he was prepared to come back in October but the prosecutor wanted him back earlier.

CB: I don't know. I don't believe he wanted to, he wanted to come freely back to Sweden. I don't think so.

KR: Yeah I can very well understand the confusion and, and, that is very difficult to understand, well, exactly how it works.

REPORTER: Well you call it confusing, it's, it may be slightly more than that.

KR: Well that's the way it works here in Sweden so, well. But I can understand the confusion, definitely.

REPORTER: Assange, still hunkered down in the London embassy, has no doubt what his fate will be if he is extradited.

JULIAN ASSANGE (on phone): If I was suddenly taken to Sweden, I would not be in a position to apply for political asylum in relation to United States. it would be the end of the road. I would just be taken from one jail to another.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 35 Error: Reference source not found

REPORTER: The US Ambassador to Australia suggests that Washington isn't interested in the Swedish extradition.

REPORTER: [MR], Assange's New York lawyer, believes there's an easy solution to the issue.

MR: If they flatly said, "We do not, we will not prosecute Julian Assange" that would be a very different kind of statement – and, and, in my view, is they should that I think they should say it, one, because then Julian Assange could leave the Ecuadorian Embassy, go to Sweden, deal with Sweden and continue on with his life.

REPORTER: But [MR] thinks that's not what the United States wants. He's convinced a Grand Jury is investigating WikiLeaks and Julian Assange. Four Corners has obtained a copy of a subpoena from a Grand Jury which is examining evidence for possible charges relating to "conspiracy to communicate or transmit national defence information" and obtaining "information protected from disclosure from national defence". Critically the subpoena contains the identifying codes "10" and "3793'.

MR: There's a Grand Jury currently sitting in Alexandria, Virginia and the Grand Jury's number - and it's interesting the Grand Jury's number is 10 standing for the year it began, GJ which is Grand Jury and then 3793. Three is the Conspiracy Statute in the United States. 793 is the Espionage Statute. So what they're investigating is 3793: conspiracy to commit espionage.

REPORTER: Certainly, anyone associated with Assange is feeling the heat of the US Authorities. [SM], worked on the Collateral Murder video. We caught up with him at a Reykjavik hotel.

(to SM) So what is it about WikiLeaks that changed everything?

SM, ICELAND MODERN MEDIA INITIATIVE: It industrialised the process of leaking.

REPORTER: [SM] flew into Washington earlier this year to attend a conference. Security officials had him in their sights the moment he stepped off the plane.

SM: When I get out through the doorway there's two bordering customs control officers. One of them takes a look at my passport, says, "Ah yes. This is the guy", and they walk with me away.

REPORTER: [SM] was questioned for several minutes about the reason for his trip, before the border guards got to the point.

36 SM: And then about, like, in the last couple of minutes they say, "Well you know we're actually asking you these questions is because we know you're related to WikiLeaks", and I say, "Well I was, but I'm no longer". And they ask, like, "So you're not in contact with Julian Assange?" And I say, "No, I have no contact with Julian", and they're like, "Oh, okay", and basically let me out. I'm on my way.

REPORTER: But it wasn't the last [SM] would see of the FBI. After the conference [SM] had a drink with friends before heading to the Washington Metro. He missed the last train. As he walked out of the Archives Station two men confronted him.

SM: Two guys come up to me and address me by name, and say that they're FBI agents, and, "We'd like to ask you some questions", and I say to them, "Well I've had some beers and I don't have lawyers, so no, I'm not going to answer any questions". They nevertheless give me a piece of paper with a phone number and an email address. This was not a business card, this was a piece of paper. This was just a kind of a card file thing, but it was handwritten and the email address was not at FBI.gov as you would expect from FBI agents.

REPORTER: Just why they wouldn't give an FBI email address puzzled [SM].

SM: They say, "Well, they contain our full names", and I said, "Why is that a problem?" "Well we're afraid that if our full names, if we give you our full names, then there will be retaliation against us personally from Anonymous."

REPORTER: The two men seemed worried he might be a member of the cyber-hacker group Anonymous which had worked with WikiLeaks.

SM: And I said, "Who the hell do you think I am? I'm not like the grand master of Anonymous. There's no, I don't even know anybody in Anonymous," right?

REPORTER: [SM]’s experience could be dismissed as an oddity, but in the backstreets of Paris we found someone with a very similar story. [JZ] heads up an Internet activist group. He's a WikiLeaks supporter.

JZ, INTERNET LIBERTY: I'm a friend with Julian. I think he's a he's a very intelligent and, and very witty person, and I enjoy very much the conversations we have together.

REPORTER: Earlier this year, as he prepared to board a plane at Washington's Dulles Airport, two men approached him about his involvement with WikiLeaks

JZ: They didn't show any badge. So I didn't ask for one, but I saw their colleague maintaining the gate of the plane open, so I thought you don't do that with a, you know, a university library card, so I thought -

REPORTER: So you thought they must be FBI?

JZ: I thought they must be FBI. and actually the agent questioning me was a caricature of FBI agent, you know, with a large jaw, short hair, tight suit. And he said, "Well, your name was mentioned in a criminal investigation for conspiracy involving lots of people", and so which case he was referring to it's the Grand Jury in Virginia. And so I ask him, thinking aloud, ‘if I understand correctly, either I talk to you or I take full responsibility for my actions in front of a judge during a fair trial". And this is where he replied immediately: "Have you ever been arrested? Have you ever been to jail?" in an obvious attempt to intimidate me.

REPORTER: What do you think they were trying to achieve?

JZ: Maybe it was to turn me into an informant, try to send me, get information from Julian, or whatever. I don't know. I will never know, probably.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 37 Error: Reference source not found

MR: [JZ] was stopped roughly at the same time coming back from a similar thing with [SM], so I don't know who would be tricking them into thinking they were FBI agents. What we've seen in a couple of these stops in the Assange WikiLeaks case is people introduce themselves as Homeland Security, at least in one instance, and not as FBI and then when they get pushed a little they have to admit they're FBI. Now, it's interesting when you think about it: these people have been hit by the FBI and that what it also tells you that this is a Justice Department investigation of civilians.

REPORTER: Even Assange's UK legal advisor, [JR], appears to have been caught in the US dragnet.

JR: I'd had an incredibly long day at work and I was late to the airport. I rushed out to Heathrow, handed over my passport and the woman behind the desk was having a lot of difficulty. She couldn't check me in. She looked at me in a strange manner and said "Look, this is odd. You're Australian, you're travelling home to Australia, you shouldn't need a visa". I said, "Well no, I'm Australian. Here's my passport, I'm going home", and she said, "I can't check you in".

REPORTER: A security officer took [JR]’s passport away

JR: She came back about 15 minutes later carrying a mobile phone, handed my passport to the woman behind the desk and said, "She's inhibited. We can't check her in until we've got approval from Australia House."

REPORTER: Though [JR] was eventually allowed to catch the plane, she has still not received an explanation why she is on a so-called "inhibited list". It doesn’t appear to be an Australian government term. But US Homeland Security uses the phrase to identify people who need to be watched.

Now back in England, she continues to be Assange's legal advisor. We caught up with her on a visit to the Ecuadorian Embassy.

JR: Look he is now gathering and preparing materials for the purpose of his application to the Ecuadorian authorities, and essentially now it's a matter for the Ecuadorian government.

REPORTER: How is he? What's his manner like? How's his humour?

JR: I have never known anyone to deal with the amount of stress that he's under as well as he does. He's in very good spirits and he’s still very committed to WikiLeaks work. He may be confined to the embassy but as he showed during house arrest, that doesn't stop him. In the last 18 months we've seen a television program, we've seen further WikiLeaks releases - so I don't think he'll let this stop him either.

JR: We are very concerned about the very prospect of potential extradition to the US. We need only look to the treatment of Bradley Manning.. He's been held in pre-trial detention for more than two years now, in conditions for a large part of that detention which the UN Special Repertoire said amount to torture. We are very concerned about the prospect of him ending up in the US, and the risk of onward extradition from Sweden was always a concern and remains a concern.

REPORTER: Once in Sweden he’d be at the mercy of a system which has a record of complying with US wishes. And there's evidence that Sweden has acted illegally in past extraditions involving the US.

38 RF: Sweden has frankly always been the United States' lap dog and it's not a matter we are particularly proud of. The Swedish Government has, essentially, whenever a US official says, "Jump", the Sweden Government asks, "How high?"

REPORTER: If that seems like a heavy handed comment, there's evidence to back it up.

MR: For me the question really is if I'm sitting in Julian Assange's if I if I'm sitting in Julian Assange's position, I'd be very, very nervous because the United States gets their hands on you in this case, and you're a goner. So, you know, what I get asked all the time is, "Well, how do you know." To me the question isn't how I know I know there's a lot of evidence out there that it looks like that. To me the burden should be on the United States Government to say, "We are not planning to prosecute Julian Assange". If they just gave that assurance, I can guarantee you that Julian Assange would go to Sweden tomorrow.

PRESENTER: We approached Australia's Attorney-General, Nicola Roxon, to pose a number of questions related to the Assange case, but she was unavailable on holidays. Ultimately, some of our questions were answered by a Foreign Affairs spokesman, by email, on behalf of Foreign Minister Bob Carr. They're on our website...

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 39 Error: Reference source not found Attachment B

Considerations to which the ACMA has regard in assessing whether or not broadcast material is factual in character

 The primary consideration is whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion.  In that regard, the relevant statement must be evaluated in its context , i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.  The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.  Factual material will usually be specific, unequivocal and capable of independent verification.  Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.  The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.  Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.

40 Attachment C Complainants’ submissions Extracts from the complainants’ submissions to the ABC

Complainant 1 - 10 September 2012

[…]

06.20 Assange’s Swedish residency and work permit application

Four Corners makes no mention of the other purpose of Assange’s trip to Sweden: to apply for residency and a work permit which he did on 18th August...

10.07 The question of consent

Four Corners state that the question of consent is about whether a condom was used. In fact, the real question is whether the woman was asleep at the time; both her being asleep and the lack of condom (for which there was a clear lack of consent) are the actual allegations. This was ignored.

Accordingly to [the reporter] himself, ignoring these facts was an ‘editorial decision’. Why was this crucial detail removed? The most serious allegation of rape revolved around this very point. Removing it makes Assange appear to be the victim. Why did [the reporter] not clarify this important point?

10:50 Charges?

[PS] claims that neither women filed charges. In fact, both women made complaints according to the memo by [LW] on Aug 22. Charges, as anyone who has followed the case could tell you, can’t happen until after Assange is interviewed in Sweden which is why he has not yet been charged, despite criminal proceedings having begun.

[…]

Why was so much made of ‘not been charged’ when this is a technicality?

10.59 STD tests

[The reporter] claims that the women tried to get the police to force Assange to take an STD test. This is not mentioned in the memo by [LW] describing events at the police station. The source of this rumour appears to be the Detention Memo which was supplied to Assange’s solicitors and then leaked…It is not a claim made by either of the two women, the police, or the prosecutor, but rather by Assange and two other people who were interviewed.

[…]

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 41 Error: Reference source not found

We don’t think that anyone disputes that both women wanted STD tests, nor does anyone contend that they tried to get Assange to take one. However, we can find no evidence to suggest that the police were asked to enforce this.

[…]

12:30 Free to leave Sweden?

[PA] claims that Assange’s former lawyer [BH] gave Assange a message that he was not wanted for interview and was free to leave Sweden. But the exact message from the prosecutor was that no force measures are in place to prevent Assange from leaving Sweden, and that the officer dealing with the case was ill so an interview could not be conducted at that point.

[…]

13.39 Arrest ordered

The prosecutor ordered Assange’s arrest on 27th September at 14.15...Assange left Sweden on the same day as his arrest was ordered, on the 17.20 flight to Berlin. Was he aware that a week earlier his lawyer had arranged an interview for the next day, or that his arrest had been ordered. Nobody is quite sure and [BH] himself even claims not to be able to remember...

A most unreliable witness but not so according to [the reporter]

14:00 Red Notice

The completely wrong information was conveyed by Four Corners as to what constituted a normal Red or Orange notice. Again [the reporter] just accepted the false claims of Assange lawyers.

[The reporter] claims that the Swedish prosecution ‘upped the ante’ by issuing a Red Notice... it was in fact Assange who upped the ante by being unavailable to his lawyer for at least a week, then leaving Sweden the day that his arrest was ordered and refusing to return. When a valid arrest warrant has been issued in the EU but the suspect has gone abroad, a red notice is standard procedure in many jurisdictions. A Red Notice, far from being reserved for ‘Terrorists and Dictators’ as [JR] states, is merely a notice sent by Interpol that an individual is wanted for arrest. Some countries treat them as automatic arrest warrants: others do not.

An Interpol report from 2007 states that red notices for sex crimes are by no means unusual, and that fraud is in fact the most common reason. Indeed, one has even been issued for drink driving, or for a man wanted for making voyeur videos of college students…Terrorists and (fleeing) dictators get an Orange Notice from Interpol to warn of the danger they may present and a red notice when they are actively sought for arrest according to Interpol.

[…]

17.15 Back doors

[The reporter] speculates that extradition to Sweden would be a back door to onward extradition to the USA for espionage...But in any case Sweden does not extradite for military or political crimes ...

So far as we can tell [the reporter] thinks that a standard process may be used to take Assange to the USA...

42 Need a clarification from [the reporter] on what he intended to say here.

18:18 Detained without charge

Assange (talking from the Ecuadorian Embassy) says that if he returns to Sweden, he would be detained without charge. We have already covered at what point charges are laid and that Assange has already reached that stage in the Swedish process. Pre-trial detention is indeed standard for a suspect who is believed to be a flight risk (and not just in Sweden). But in Sweden, pre-trial detention is a fairly standard practise for most suspects of serious crimes though the detention must be reviewed after three and a half days…

[…]

22.50 Are rape victims allowed to smile?

[PS] appears to state that there is some sort of standard formula that rape victims should follow after being raped....It is also worth noting that [PS] is talking about the woman who has not made an allegation of rape.

23:15 Lawyer v malsagarbitrade

The Caption given to [CB] is ‘lawyer’... While [CB] is a qualified and practising lawyer, his role in this case is one of ‘malsagarbitrade’ to the two women. There is no easy English translation, but a good approximation is assistant. While [CB] happens to be a lawyer, that is not a requirement: a ‘malsagarbitrade’ could be a police officer or even a member of the public with insight into the processes. He was appointed by the court (and is paid by the state for his work on the case)…

To call him the ‘lawyer’ for the two complainants could give quite the wrong impression to an English-speaking audience who are unfamiliar with the role of the ‘malsagarbitrade’. A closer English equivalent would be ‘counsellor to’ or ‘advisor to’...

27:05 Unsigned statement?

[The reporter] claims that one woman refused to sign her statement... there is nothing in the police record (or anywhere else that we are aware) to suggest that she refused to sign. It’s another of those persistent rumours that one hears but cannot find an origin for.

...It is worth noting that in Sweden a signature is not required until trial

28:15 Leaks real and otherwise

Contrary to what [the reporter] states, there were no documents leaked by the authorities to the tabloids. Somebody (who remains unknown) gave the media the full details… The Expressen called the original prosecutor with the full details already to hand, and she confirmed that Assange had been arrested in absentia. She should not have done this. The media then applied for the police statements under the Swedish equivalent to the Freedom of Information Act, and the police were obliged to release (redacted) copies.

But unredacted copies were leaked later.

From the leaked material, it appears that these were copies of documents that were given to Assange’s legal team…

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 43 Error: Reference source not found

These document were sent by fax from one lawyer to another and clearly marked as privileged. Yet here they are: leaked. Four Corners appear to have missed the real leak and instead supposed another one which never actually existed. This is wrong.

[…]

28.57 Appealing a decision

[The reporter] states that the case being re-opened was a ‘strange twist’. In In Sweden, a case decision can be appealed...in 2010 12% of all appeals were successful.

So this is by no means unheard of, We can only assume that despite his research [the reporter] didn’t manage to uncover this aspect of the standard legal process...

30: 20 Returning to Sweden

[The reporter] claims that Assange offered to ‘return within a month’. He was actually due to return anyway.

[…]

So it appears that Assange was scheduled to give a talk on 6th October in Sweden, The prosecutor arranged for him to be questioned there.

[…]

The warrant has been examined by six courts: the Swedish Court hat issues it, the Swedish Court of Appeal of Svay, the Swedish Supreme Court, the English Magistrate’s Court, the English High Court, and the English Supreme Court.

Every single one of those courts has examined the warrant and found that it is valid.

We note that two years on, Assange has not yet returned to Sweden, but rather he has fled to the Ecuadorian Embassy. We consider that six courts and an asylum claim are a rather odd way of returning to Sweden within a month,

31:44 Asylum from Sweden

Assange states he could not claim asylum once in Sweden. Yet Sweden can and does offer asylum from the USA….

…However, Assange’s meaning could be ambiguous. If he means that whilst detained in Sweden he would be unable to apply for asylum from Sweden, then that is indeed the case. But he has always maintained that he will happily return to Sweden if he is not then given to the USA for espionage which Sweden cannot do.

This was never referred to by Fowler who consistently only follows Assange’s perspective, Why no balance? Why such a negative appraisal of Sweden throughout?

32:00 Sweden and espionage extraditions

[JR] says that the Assange legal team fear that the US will apply for extradition from Sweden. Presumably for espionage which, as we have seen, Sweden does not extradite for.

[…]

Why were Assange lawyers given free rein on this program to present unchallenged supporting hypotheses presented as fact?

44 33.42 US allegations of espionage

Four Corners have obtained Grand Jury evidence which mentions national defence which is espionage which Sweden doesn’t extradite for... Did Four Corners check to see if Sweden could actually extradite for espionage, before basing their entire show on that assumption?

[…]

43.20 Extradition, deportation and rendition

[The reporter] claims that Sweden has acted illegally in past extraditions. There is no dispute that Sweden acted illegally in deporting the two Egyptian men, but that was a deportation to their home country. It was not an extradition, and followed a different process. The courts were not involved, for one thing.

[…]

43:27 [RF]

[…]

We are not sure what RF is doing on this show…According to [RF], Sweden is a US lapdog who jump at the behest of the USA..[and] seems to be under the impression that the two Egyptian deportees were Swedish Citizens. But some quick research showed us that neither was a Swedish citizen: the two Egyptian men were in fact two Egyptian men.

Why did Four Corners not appear to know this?

Complainant 2 – 26 March 2013

[…]

... the program was one-sided and it contained a large number of false claims and misrepresented facts…

From mid November 2010, Julian Assange’s legal team have claimed that if he were to go to Sweden he would be held ‘incommunicado’ in a remand prison. In the program, [PS], Assange’s Swedish lawyer, made the following statement:

The minute he hits Swedish soil he will be arrested. He will be brought to a custody jail. He will be kept there in isolation for four days. He can only meet with me and my co-lawyer.

The truth is completely different. On 18 November 2010 the Stockholm Tingsratt issued a warrant for Julian Assange’s arrest. In the ruling the court stated:

The prosecutor is not permitted to issue a decision on restrictions.

The court ruled that restrictions were not allowed. Julian Assange would have no restrictions in jail, except being in jail. To allow [PS], on behalf of Julian Assange, to make a false statement without any correction or comment is far from being impartial. It is also more than being one sided. It is actually in support of misrepresenting facts. That is not being accurate.

[…]

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 45 Error: Reference source not found

[The reporter] claims, with no facts to support his claim, that Sweden has a system which has a record of complying with US wishes and that there is evidence that Sweden has acted illegally in past extraditions involving the US. This is absolutely not true. On the contrary, Sweden has not extradited to the US one single person for a political or a military crime in the last 50 years…

…[RF], a business associate of Julian Assange, it allowed to express his views without comment…

... According to [the reporter] the evidence is [RF]’s claims... According to [RF] two Swedish citizens were renditioned by the CIA to Egypt. First, Swedish citizens cannot be extradited or renditioned outside Europe, it is against the law. Second, the two individuals were not Swedish citizens; they were Egyptians that have come to Sweden to seek political asylum. Third, the two Egyptians were deported, suspected of terrorism, some three months after 9/11. Fourth, the legal process of deportation is very very different from the process of extradition so there is no comparison, Fifth, [RF] is obviously of the belief that Swedish citizens can be deported, be exiled. I do not know of any Swedish citizen who has been deported from Sweden in the last 200 years.

[…]

Extracts from the complainants’ submissions to the ACMA - 6 June 2013

[…]

An overview of the Assange defence

To be able to determine if the program is partial and favouring one side one has to know what the Assange side’s arguments are. This is a short summary of the Assange defence.

On the 20th of August 2010 two women reported Julian Assange for sexual crimes. The prosecutor in charge issued an order for his arrest later the same day. The story was picked up by Expressen, a Swedish newspaper, and a world-wide media frenzy was initiated.

Julian Assange’s immediate response was, it must be “an intelligence operation”. "It is clearly a smear campaign ... the only question is who was involved.”This comment, and others like it, made the media world-wide go on a wild goose chase trying to find evidence for a conspiracy against WikiLeaks and Julian Assange in particular. A chase that so far has not resulted in anything but endless speculations and bizarre conspiracy theories.

Over the many months since August 2010 Julian Assange’s defence can simply be divided up in two main categories. “The Abuse of Process defence” and “Fear of Extradition defence”. Many of the arguments the Assange legal team are using are based on misrepresentations of facts…

“The Abuse of Process defence”

This defence is based on that the allegation that the Swedish authorities are not following normal procedures and that they are involved in some kind of conspiracy with the US to get Julian Assange into the hands of the US. Typical “Abuse of Process” arguments:

• the crimes that Julian Assange are accused of are not crimes in the rest of the world

46 • the review procedure (“överprövning av åklagarbeslut”) is an abuse of process

• a prosecutor cannot be a judicial authority

• the prosecutor Ny is not allowed to issue an EAW

• Julian Assange is not charged with a crime

• Julian Assange is only wanted for questioning

• Julian Assange stayed in Sweden for five weeks and the prosecutor did not want to interview him

• Julian Assange will face severe restrictions in jail in Sweden

• Interpol issued a Red Notice for Assange but only an Orange Notice for Gadhafi

• Miss [SS] was present during Miss [SW]’s interview

• no woman has made a formal complaint against Julian Assange

• the European Arrest Warrant is not proportional

• prosecutors requested to deny Assange the right to appeal to ECHR

• Sweden is the Saudi Arabia of feminism

Many of these arguments were used during the extradition hearings. The arguments presented were thoroughly rejected by the UK courts. One of Julian Assange’s lawyers was deemed an “unreliable witness” for making a statement that “was a deliberate attempt to mislead the court.

“Fear of Extradition defence”.

The other line of defence is what we call “Fear of Extradition defence”. It is simply an argument that Julian Assange fears that if he was to be extradited to Sweden he then would run a great risk of being re-extradited to the US. This defence was for some reason not used in the extradition hearings. It is reserved for the media and it was also used by Julian Assange in his application for asylum at the Ecuadorian Embassy.

The defence is built on some basic claims.

• Julian Assange is regarded as the US’s public enemy number one.

• A Grand Jury is convening trying to charge Julian Assange for espionage or conspiracy to commit espionage.

• Sweden will most likely re-extradite him to the US since Sweden is “a lapdog” to the US.

• Proof that Sweden will re-extradite him is a case of expulsion to Egypt of two individuals.

“[Reporter] Though the task force found that Assange had broken no law, his more immediate worry was that his extradition to Sweden would be a backdoor to onward extradition to the United States. For more than 500 days Julian Assange and his legal team fought his extradition. Through the magistrates courts to the High Court and on to the Supreme Court, the most powerful court in the land. But on June the 14th Julian Assange lost his final appeal. The Supreme Court ruled he'd have to be extradited. Five days later, Assange fled to the Ecuadorean Embassy in London.”

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 47 Error: Reference source not found

Julian Assange’s most important defence argument

For Julian Assange the argument that he is likely to be re-extradited to the US if he is extradited so Sweden is the most important. It forms a significant part of Assange’s and his supporters’ justification for his refusal to return to Sweden. This is also the argument the Ecuadorian government used or granting Julian Assange diplomatic asylum. We think it is correct to say that Julian Assange’s present and future credibility hinges on if this argument is true.

[BM]’s leak of classified information is by far the largest in US history. It is not surprising that the investigation into the leak is massive. The program points out there is a Grand Jury in Virginia that is investigating if anyone can be charged with the crime conspiracy to commit espionage in connection to the leak. No surprise considering the size of the leak.

[MR]: There's a Grand Jury currently sitting in Alexandria Virginia and the Grand Jury's number - and it's interesting the Grand Jury's number is 10 standing for the year it began, GJ which is Grand Jury and then 3793. Three is the Conspiracy Statute in the United States. 793 is the Espionage Statute. So what they're investigating is 3793: conspiracy to commit espionage.

The program fully supports Julian Assange’s defence arguments

The program wants to convince the audience it is most likely that Julian Assange will be charged with conspiracy to commit espionage and if he is, he then would be at risk for onward extradition to the US if is he extradited to Sweden. To prove that Julian Assange is at risk for onward extradition one example of an expulsion to Egypt is utilized.

In order to convince the audience Four Corners omits important facts. Sweden has a long history of not complying with US wishes regarding extraditions contrary to [the reporter]’s claims. For the last 50 years Sweden’s track-record is immaculate. No extraditions to the US for political or military crimes. There have been more than 430 cases. Sweden has even refused to extradite a CIA defector. Espionage and conspiracy to commit espionage are regarded as political crimes.

The US Ambassador to Australia points out that Sweden has a less robust extradition agreement with the US than the UK has. To contradict this statement Assange’s lawyer, [MR], is allowed to directly comment on the Ambassador’s statement.

Finally the program resorts to deception. Julian Assange’s most important defence argument is the risk of onward-extradition to the US. In the program the concept extradition is mentioned 17 times. The concept deportation is never used. The concept expulsion is never used. [The reporter] uses one example of an expulsion/deportation to Egypt as proof that “Sweden has acted illegally in past extraditions involving the US.” In order to complete the deception [the reporter] does not inform the audience there is a fundamental difference between extradition and expulsion.

…

Unsubstantiated claims by [the reporter]

[…]

Claim 1: Extraditions (involving the US)

48 The introductory claim by [the reporter] is that “there's evidence that Sweden has acted illegally in past extraditions involving the US.” But the evidence [the reporter] presents, with the help of [RF], has nothing to do with extraditions. It is about expulsions. The expulsions on national security grounds occurred on the 18th of December 2001.

[The reporter] must have been fully aware that the case had nothing to do with extradition since he comments “A United Nations investigation later found against Sweden.” The UN investigation makes it absolutely clear that the case is about expulsion/deportation on national security grounds. Expulsions to Egypt.

[The reporter] does not present a shred of evidence that Sweden has acted illegally in past extraditions involving the US. The evidence is about expulsion. Something fundamentally different.

[The reporter]’s claim “there's evidence that Sweden has acted illegally in past extraditions involving the US.” is unsubstantiated.

An extradition request is in Sweden handled by the court system. It is not until the Swedish Supreme Court has granted an extradition that the government has a final say. The government can refuse to carry out an extradition. The government cannot extradite a person without a Supreme Court order.

An expulsion on national security grounds is in almost all cases handled by the government alone. The court system is not involved. The government is in control of the procedure from the beginning to the end.

If Julian Assange is extradited to Sweden there is zero risk that he will be expelled or deported. There is only a risk for extradition. But the Swedish government cannot positively influence an extradition. The government can stop an extradition but it cannot extradite anyone without a Swedish Supreme Court order for extradition.

Even though the Swedish government in 2001 has acted illegally in one expulsion of two individuals to Egypt it does not have any connection to the Assange case. [The reporter] has skillfully constructed a deceptive and totally false claim.

[…]

Claim 2. Sweden acted illegally in past extraditions involving the US

[Reporter]: Once in Sweden he would be at the mercy of a system which has a record of complying with US wishes. And there's evidence that Sweden has acted illegally in past extraditions involving the US.

Between 2001 and 2012 Sweden received some 230 extradition requests19. There is not one single extradition from Sweden that in any way could be regarded illegal where the US has been involved. In fact there is not one single extradition that could be regarded as illegal. [the reporter] makes an accusation but does not offer one single piece of evidence. The claim that “Sweden has acted illegally in past extraditions involving the US” is unsubstantiated and misleading.

Claim 3. Sweden complies with US wishes

Between 2001 and 2012 approximately 1 million people were granted residency permits in Sweden. Many applications were denied. A number of people who were denied residency

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 49 Error: Reference source not found

refused to leave Sweden voluntarily. Between 2001 and 2012 more than 50 000 individuals were forcibly expelled/deported with the aid of Swedish police. To claim that Sweden has a record of complying with US wishes based on two expulsions out of 50 000 is stretching it. It is only in 0,004% of the cases one could argue Sweden might have complied with US wishes. We don’t think that the case [the reporter] refers to, the expulsion to Egypt, is a case where Sweden complied with US wishes…

[…]

Claim 4. Swedish citizens renditioned to Egypt.

[…]

[RF] states that the individuals renditioned (expelled) to Egypt were Swedish citizens. He does not know that Swedish extradition laws prevents Swedish citizens to be extradited outside of Europe. He is not even aware of the fact that Swedish citizens cannot be expelled/deported. Deportation/expulsion of Swedish citizens was abolished in 1864.

[RF]’s comments about the case of the two Egyptians are inaccurate. The expelled individuals were not Swedish citizens. They were two asylum seeking Egyptian citizens that were expelled from Sweden on the 18th of December 2001 on national security grounds.

[…]

Claim 5. Sweden complied with US wishes in one expulsion to Egypt

It is absolutely correct to say that Sweden did act illegally when the two Egyptians were expelled to Egypt in 2001. But did Sweden comply with US wishes? We don’t think so. There is no evidence that the US had any particular wishes regarding the two Egyptians.

The case has been investigated thoroughly by the Swedish Parliamentary Ombudsman (“Justitieombudsmannen, JO”)...

[…]

What was illegal about this expulsion? The main criticism concerns the fact that Swedish government officials in a meeting with Egyptian officials had been given diplomatic assurances that the men would not be tortured. The diplomatic assurances proved to be worthless and the men were tortured and mistreated in jail. Sweden had, by relying on diplomatic assurances, sidestepped international laws and in doing so violated the men’s human rights.

[…]

We have not found any evidence that the expulsions were complying with US wishes. The US, as it seems, did not ask for the men’s expulsion. The US connection is that the men were flown to Egypt in a US aircraft operated by CIA. We don’t think it is correct to say that the expulsion was complying with US wishes.

[…]

Four Corners turned a blind eye to information about extraditions

[Complainant 2] has made some important discoveries in the Assange case. That is the reason he was a witness for Assange in the extradition hearing 7-8 February 2011. On the 4th of July he was contacted by [LK], researcher for Four Corners:

50 I have read your witness statement regarding Anna [AA] and I am very keen to get copies of the deleted Tweets.

Did you save snapshots of these Tweets from her Twitter account? (Exhibit GR-3) If so, would you mind sending them to us?

After this initial contact many e-mails were exchanged between [complainant 2] and Four Corners. On the 14th of July 2012, ten days before the program aired, [complainant 2] sent an e-mail to [WH], producer of “Sex, Lies and Julian Assange”.

Regarding extraditions. Most people that have expressed an opinion of extraditions from Sweden to the US have not provided any facts. It is just opinion, opinion and opinion and also stating the obvious that Julian Assange has fears.

In a post I tried to look at the facts of extradition from Sweden. http://samtycke.nu/eng/2012/07/julian-assanges-lawyers-conspire-to-hide-the-truth- about-extraditions/

If you read the article you will notice that there is nothing that supports the idea that Sweden will extradite Julian. On the contrary all history shows that Sweden does not extradite for military and political crimes. And spying is a political crime.

The post has a title that ought to catch the eye of the producer of a program on Assange and extraditions. It is called “Julian Assange’s lawyers conspire to hide the truth about extraditions”. The post starts with the following sentences:

[GG], [MR], [JR], [MS], [GR] [PS] are all lawyers that have claimed that there is a great risk that Julian Assange will be extradited to the US from Sweden if he is extradited from the UK. I have asked [GG], [MR] and [JR], for any facts that support their claims. So far I have not received any. And that is not surprising. There aren’t any. The so called “risk of extradition” is nothing more than a fabrication. A lawyers’ conspiracy in an effort to gain public support. But in plain English it is nothing more than a series of silly lies.

Four Corners had access to information about extradition that clearly showed that [the reporter]’s claims were inaccurate. For some reason Four Corners turned a blind eye to the information.

Claim 6. The case is about use of a condom

[Reporter]: The sex with [SW] in her apartment might have been consensual, but critically there was a question over whether Assange had used a condom.

It is a well-known fact that Julian Asssange is suspected of rape. It is evident from the hearings in the Magistrates’ Court as well as the High Court. What it is about is Julian Assange initiating sex while Ms [SW] was incapacitated by sleep. The sex was also unprotected. To try to reduce the matter to use of a condom is misleading the audience.

The Assange side is trying to down-play a case of rape by calling it “sex by surprise”. [The reporter] is trying to reduce it to use of a condom. [The reporter]’s comments are misleading.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 51 Error: Reference source not found

Claim 7. Julian Assange is not charged

[Reporter]: Assange in fact did go to the Swedish Police ten days after the first allegations were made. He was interviewed but not charged with any offence, and he was free to leave the country while the inquiry continued.

On the 30th of August 2010 Julian Assange was interviewed and informed in a language he understood he was charged, "delgiven misstanke” "Julian Assange is charged…

Assange’s legal team admits he is charged. They make the argument that he is entitled to be informed about accusations (charges) against him30. From the Skeleton Argument for the 7-8 February 2011 extradition hearing:

The prosecutor’s office has refused all requests – and still refuses all requests – to make the evidence against Mr. Assange available in English, which is in breach of his right under Article 6 of the ECHR.

[JR], legal advisor to Assange mentions in her 3 March 2011 brief to Australian MP’s:

In summary, our concerns regarding the case in Sweden to date include: …. the failure to disclose details of the allegations and the evidence in English;

There is no doubt that Julian Assange is charged with a criminal offence as the term is used in Article 6(3) by ECHR. His legal team accepts the fact that Julian Assange is charged. Otherwise they would not argue he has the rights of a person charged with a crime. For some reason Julian Assange often makes the false claim that he is not charged with a crime.

Any knowledgeable journalist making a documentary of a criminal case in Sweden must know that it is not legally possible to be arrested and detained in Sweden without being charged with a crime. This goes for rest of Europe as well. It is also true in Australia.

[The reporter]’s claim that Julian Assange is not charged with a crime is unsubstantiated.

Please note that Article 6 (3) of the ECHR specifies that a person charged with a crime has the right to be “informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”. A charged person does not have the right to see the full police file and the evidence against him.

[…]

Claim 9, 10, 11 and 12. A series of claims made up by [the reporter]

[Reporter]: Three days later on August 20th, [SW], accompanied by [AA] went to the Klara police station in central Stockholm to seek advice about whether Assange could be forced to take an STD test. [AA] had gone along primarily to support [SW]. Sometime during [WW]'s questioning the police announced to [AA] and [SW] that Assange was to be arrested and questioned about possible rape and molestation. [SW] became so distraught she refused to give any more testimony and refused to sign what had been taken down.

[…]

According to police documents there are no discussions at the police station about whether Assange could be forced to take an STD test. The police documents clearly show that the two women’s main interest was to report Assange for sexual assaults, rape and molestation.

52 […]

There is nothing in the police documents that support [the reporter]’s claim that Miss [SW] got so "distraught she refused to give any more testimony and refused to sign what had been taken down". What the police interrogator, Irmeli Krans, has written in Miss Wilén's statement is the following:

In the course of the interview, [SW] and I were informed that Julian Assange had been arrested in absentia. After that, [SW] had difficulty concentrating, as a result of which I made the judgment that it was best to terminate the interview. But [SW] did mention that Assange was angry at her. There was not enough time to obtain any further information about why he was angry at her or how this was expressed. Nor did we have time to discuss what had happened afterwards. The interview was neither read back to [SW] nor read by her for approval; but [SW] was informed that she could do so at a later date. [Translation]

The police interrogator states that Miss [SW] had problems concentrating after she had been informed that Assange had been arrested. The interrogator states clearly that she alone thought it was best to stop the interview because of Miss [SW]’s difficulties concentrating. There is nothing that supports the claim that Ms. [SW] “refused to give any more testimony” or she “refused to sign what had been taken down.”

The interrogator confirms that the interview was not read back to Ms. [SW] or that she had the opportunity to read the interview. There is nothing in the police documents suggesting that Miss [SW] had refused to continue the interview, that she had stopped the interview or that she had refused to sign the interview.

[…]

Claim 13. Prosecutors leaking statements to Expressen

[Reporter]: The Prosecutor's Office might not have contacted Assange but within hours they let the whole of Sweden know what was going on - leaking to the Expressen Tabloid the statements of [AA] and [SW]. The newspaper front page read: "Assange hunted for rape in Sweden".

[The reporter] claims, again without any factual support, contrary to what verified documents say that the prosecutors did leak the statements of the two women to the tabloid Expressen. The Swedish Prosecution Authority has in a public announcement explained what happened in the evening of Friday 20th August:

The information of the arrest reached, in a way that Prosecution do not know, nor may investigate, a Swedish news agency. A journalist contacted the on-call prosecutor during Friday evening. When the prosecutor began to realize that the journalist knew all the details of the case the prosecutor confirmed that there was such a case concerning the person, ie. Julian Assange.

The prosecutor did not submit any data whatsoever about the details of the case. This is very important especially in sexual misconduct because information about the people involved must be protected. This is regulated by the Official Secrets Act.

[The reporter] interviews [TM], the editor of Expressen. [TM] corroborates the prosecutor’s description of events:

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 53 Error: Reference source not found

[TM]: Two of our reporters had information about Julian Assange, and we also had a confirmation from the prosecutor which confirmed on record that there was a police investigation against Julian Assange.

Even though [the reporter] had ample time to interview [TM] about the sequence of events and opportunity to check the Prosecution Authority’s public announcement he still prefers to falsely claim that the Prosecution Authority somehow leaked Miss [AA]’s and Miss [SW]’s statements to Expressen.

To make it absolutely clear what means with a statement. In a comment seconds later he explains what he means with “a statement”.

[Reporter]: It was now the case took a strange twist. Within 24 hours, a more senior prosecutor dismissed the rape allegations, leaving only the lesser accusation of molestation. Assange willingly went to the police on August 30th and made a statement.

It is evident that [the reporter] means that a statement is the contents of a police interview.

[…]

Claim 14. Leaking Julian Assange’s statement to Expressen

[Reporter]: During the interview he [Assange] expressed his fears that anything he said would end up in the tabloid newspaper Expressen. The interviewing police officer said: "I'm not going to leak anything." The interview was leaked.

In Sweden the public has a right to obtain documents from government institutions like the police through the Swedish version of Freedom of Information act, Offentlighets- och sekretesslag… The idea behind the law is to maintain an open and transparent government. [The reporter’s] comment proves that neither he nor Julian Asssange does have any knowledge about Sweden’s open and transparent government and how it works.

[The reporter] falsely claims that Assange’s police statement was leaked to Expressen. He does not however specify who is responsible. From the wording of [the reporter’s] comment the audience is led to believe the statement was leaked by the interviewing police office, [MG].

The information Expressen obtained and published part of on the 2nd of September was lawfully handed out by the Stockholm’s Police legal department based on the Freedom of Information Act. Sensitive parts of the interview were blacked out.

[The reporter’s] claim is based on the police interview with Julian Assange from the 30th of August. The full transcript is below. …For some reason [the reporter] omits part of this interview to make his claim.

[…]

[Police Prosecutor]: Yes, but according to the Secrecy Act [Offentlighets och Sekretesslagen] nothing about what happened will be made public. No names will be released. It works like this: On every document, everything that may not be made public is blacked out. But according to the law it must be reviewed for confidentiality, and we are required to make public everything which according to the law does not have to be reviewed for confidentiality.

[…]

54 During the interview Julian Assange was informed, in a language he understood, that there was a Secrecy Act (“Offentlighets och Sekretesslagen”) that stipulates that a member of the public has the right to obtain documents from government authorities like the police. Even though Julian Assange was informed that previous releases of documents regarding the case was done according to the law he still prefers to call it leaks. Abuse of process. For some reason [the reporter] calls it leaks even though he should have understood, from Assange’s police statement, that all documents released about the case were lawfully released according to the Freedom of Information Act. Why [the reporter] prefers to make a false claim that is in line with Julian Assange’s is not known.

As far as we know there are no confirmed leaks from the Swedish Prosecution Authorities or the police. All the police documents that are released to the public are released according to the Freedom of Information Act.

The only confirmed leak that does exist in the Assange case is the leak that originates from Assange’s legal team. The leak of the Detention Memorandum on 30 January 2011. We know who posted the Memorandum.

Claim 15. Assange’s offer to return to Sweden

[Reporter]: It is perhaps understandable that Assange had doubts he would receive fair treatment from the Swedish authorities. On September 15th, the prosecutor told Assange he was permitted to leave Sweden. Assange, back in England, would later offer to return within a month. The Swedish Authorities said too late - a second warrant had already been issued for his arrest.

Julian Assange has never been told by the prosecutors he was free to leave Sweden. His lawyer, [BH] asked the prosecutor on the 14th of September if his client, Julian Assange, could leave the country for a short period of time. On the 15th he was informed over the phone that there were “no force measures” against his client. In an e-mail from the 15th of November the prosecutor confirms this.

[…]

Assange interpreted the message from the prosecutor as if it was okay to leave Sweden.

It is a fact that interviews were arranged for Julian Assange on a number of occasions. He never showed up. Before he left there were dates set for the 23rd of September and the 28th of September. According to Julian Assange’s calendar he had planned to return to Sweden and take part in a seminar on the 6th of October and a demonstration on the 9th of October.

On the 30th of September [BH] proposed an interview on the 10th or 14th of October. The prosecutors replied that they wanted an interview at an earlier time since they were aware Julian Assange had planned to take part in the seminar on the 6th of October.

On the 5th of October the prosecutors tried to arrange for an interview with Assange the 6th. Assange never showed up for the seminar or the demonstration. He never gave a reason why. Since Assange never showed up it was agreed that he should come in for an interview on the 14th of October.

On the 12th of October [BH] contacted the prosecutors and told them that Julian Assange was again “uncontactable”. At this time [BH] was warned that if Julian Assange did not come in voluntarily for an interview an arrest warrant would be issued and an EAW would follow.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 55 Error: Reference source not found

Julian Assange and his legal team have claimed, still do, that Julian Assange through his lawyer [BH] has proposed dates that have been turned down by the prosecutors. This is not true according the prosecutors. In an e-mail to [BH] the prosecutor [MN] writes…

We have, with respect to the dates suggested, said that we would rather like to see it take place earlier but we have not said no to any of the proposed times.

It is apparent from prosecutor [MN]’s e-mail that the prosecutors have never said no to a date for an interview with Julian Assange. It is Julian Assange who had said no to going to Sweden for interviews. He has even said no to interviews in England.

Unsubstantiated claims by Assange and his legal team

Claim 16. No charges filed against Julian Assange

[PS]: Somehow the two women started to exchange text messages which….. with each other and started to discuss what had happened, and they ended up at the police station, but they did not file any charges against Julian.

[Reporter]: [AA] and [SW] went to Central Stockholm's Klara police station to see if they could compel Assange to take an STD test should he refuse.

[PS]: But the police interpreted what one of the girls said as some sort of sex crime having been committed and that resulted in a prosecutor the same night issuing a warrant of arrest for Julian.

It is very clear from the police reports that the two women filed charges against Julian Assange on 20 August.

"[SW] stated that she was raped in her home in the morning on Tuesday 17 August, that a man had sexual intercourse with her against her will."

"Day as above [AA] came to Klara police station for the reason she wanted to report a man for molestation."

[The reporter] acknowledges that statement by Assange lawyer is statement of fact

In this sequence it is beyond doubt that [the reporter] regards [PS]’s statement as a statement of fact when he bases his claim that “[AA] and [SW] to Central Stockholm's Klara police station to see if they could compel Assange to take an STD test should he refuse.” on [PS]’s previous statement. This claim is based on the alleged fact that the women did not file any charges against Julian Assange.

[PS] then continues and presents another claim, it was the police who interpreted the two women’s request to compel Julian Assange to take an STD test as if a sex crime had been committed.

There is nothing in the official documents that supports this speculative theory. It is an unsubstantiated claim.

In this sequence it is obvious that [the reporter] regards [PS]’ statement as a statement of fact. It is also evident that [the reporter] sides with Assange’s lawyer. That he is partial.

Claim 17. Assange leaving Sweden in good faith

[PS]: In mid-September he got a message from his then-lawyer, but the prosecutor did not want him and….. that he was... for an interview, and that he was free to leave

56 Sweden, and under that assumption he left Sweden in the afternoon of the 27th of September in good faith that he had sought for and got approval from the prosecutor to leave the country.

On the 21st of September Julian Assange’s lawyer [BH] was contacted by the prosecutors. An interview was set for the 23rd of September. Assange was “uncontactable”. Then it was agreed that Assange should be interviewed on the 28th of September. Assange was again “uncontactable”. Assange left Sweden for Berlin on the 5:20 pm flight for Berlin on the 27th of September 2010. Even though Julian Assange knew he was accused of serious sex crimes he left Sweden without contacting his lawyer once between the 21st and 27th of September.

The reason suggested for Julian Assange being “uncontactable” is that he feared for his life…

As soon as Julian Assange arrived in Berlin he contacted [BH] by phone in the morning of the 28th of September. An extraordinary behavior for a man that according to his lawyers so much feared for his life that he could not make one phone call to his lawyer while in Sweden. The legal team wants us to believe that Julian Assange as soon as he left Sweden he stopped fearing for his life. This certainly is a strange argument given the reason for Julian Assange contacting his lawyer was that his luggage was missing.

In the hearing Magistrate’s Court Assange’s legal team tried to convince Judge [R] that Julian Assange had stayed in Sweden for five weeks without the prosecutor showing any interest in interviewing him. This statement was regarded as a deliberate attempt to mislead the court. Assange’s lawyer was deemed an unreliable witness. From the ruling on the 24th of February 2011

I have not heard from Mr Assange and do not know whether he had been told, by any source, that he was wanted for interrogation before he left Sweden. I do not know whether he was uncontactable from 21st – 29th September and if that was the case I do not know why. It would have been a reasonable assumption from the facts (albeit not necessarily an accurate one) that Mr Assange was deliberately avoiding interrogation in the period before he left Sweden. Some witnesses suggest that there were other reasons why he was out of contact. I have heard no evidence that he was readily contactable.

[JR] confirms that Julian Assange was difficult to contact:

“It is important to note here that Julian was, at that time, difficult to contact. He was maintaining a low profile because of threats to his security and increasing pressure from the US in advance of the two largest disclosures of US classified documents in history: the Pentagon had just announced a team of 120 people dedicated to “taking action” against WikiLeaks.”

“Julian telephoned Mr [BH] from Berlin on 29 September [should morning of 28th of September according to eye witness] to inform him that his luggage had gone missing on his Stockholm-Berlin flight and that it was now presumed to have been stolen since the airline had not been able to locate and return it. He called to instruct Mr [BH] to take legal action.”

From the ruling in Magistrates’ Court and the extra information it is not correct to state that Julian Assange left Sweden in good faith. If he had any good faith and wanted to be interviewed he would have made one phone-call to his lawyer between 21 September and 27

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 57 Error: Reference source not found

September before leaving. We understand that Julian Assange’s legal team for obvious purposes wants to depict Julian Assange as an innocent man that left Sweden in good faith and to depict the prosecutor as a person that behaves unprofessionally. The facts in the case indicate something totally different.

Judge [R] states: “It would have been a reasonable assumption from the facts (albeit not necessarily an accurate one) that Mr Assange was deliberately avoiding interrogation in the period before he left Sweden.” Why is it more important for [the reporter] to let Assange’s lawyer claim that Assange left Sweden “in good faith” than it is to report Judges [R]’s reasonable assumption?

To allow [PE] to express his opinion without checking and commenting on the underlying facts is misleading the audience.

[…]

Claim 18. Interpol Red Notices for dictators and terrorists

The Assange legal team is trying to convince us that there are many irregularities and that the Swedish Prosecution Authority is not behaving in an ordinary and lawful manner. The legal team is even trying to depict Interpol as in on a conspiracy to get Julian Assange.

In November 2010 the Prosecution Authority asked Interpol to issue a Red Notice for Julian Assange since he was a person wanted for extradition. [JR] tries her best to depict the issuing of an Interpol Red Notice as something very odd indeed.

[JR], UK LEGAL ADVISOR TO ASSANGE: You only need to look at the way that Red Notices are used around the world. Red Notices are normally the preserve of terrorists and dictators. The president of Syria does not have a Red Notice alert. Gaddafi in Libya, at the same time Julian's arrest warrant was issued, was not subject to a Red Notice but an Orange Notice. It was an incredibly... it was incredibly unusual that a red notice would be sought for an allegation of this kind.

From the Interpol website it is very easy to get information about the notice system and what the different notices mean:

In the case of Red Notices, the persons concerned are wanted by national jurisdictions for prosecution or to serve a sentence based on an arrest warrant or court decision. INTERPOL's role is to assist the national police forces in identifying and locating these persons with a view to their arrest and extradition or similar lawful action. In addition, Notices are used by the United Nations, International Criminal Tribunals and the International Criminal Court to seek persons wanted for committing crimes within their jurisdiction, notably genocide, war crimes, and crimes against humanity.

Red Notice: To seek the location and arrest of a person wanted by a judicial jurisdiction or an international tribunal with a view to his/her extradition.

Orange Notice: To warn of an event, a person, an object or a process representing an imminent threat and danger to persons or property.

From information available on Interpol’s websites it is easy to see that [JR]’s statement is inaccurate. Available Interpol statistics for 2011. There were 7 768 Red Notices and 31 Orange notices. There were only 31 notices for terrorists and dictators.

58 How come Four Corners did not verify the accuracy of [JR]’s claim? Is it because statements from Assange’s legal team are regarded as the truth?

[…]

Claim 19 and 20. Julian Assange misrepresents facts

On 14 June 2012 the Swedish Prosecution Authority made a public announcement about what would happen when Assange arrived in Sweden. Excerpts from the announcement below:

During his stay in prison, he will have the opportunity to have contact with the outside world, under conditions the prison’s safety and regulations provide. He is in custody because of the danger of flight and therefore will not have any restrictions limiting his right, for example to watch TV, read newspapers or socialize with other inmates.

From the public announcement, actually by the Prosecution Authority, it is absolutely clear that Julian Assange lies about the contents. The announcement states clearly that Julian Assange would not have severe conditions, restrictions, in prison. There is no mentioning of the fact that Julian Assange would be detained him without charge.

There is no doubt that Julian Assange misrepresents facts. And that he does so willfully. The aim is clear. He wants to mislead the audience. Four Corners lets him.

It is illegal in Sweden, as in most countries, to detain a person without the person being charged with a crime. If Assange would be detained in Sweden without a charge it would be sensational and a first time ever. If Assange would be detained without charge his lawyers would immediately file a complaint. His lawyers have not complained that Assange would be detained without charge proving that Assange’s claim is false.

[…]

Claim 24. Restrictions in jail

Assange’s legal team, along with [the reporter], tries very hard to make the audience believe that Julian Assange is up against an unfair and evil Swedish prosecutor. It is part of the “Abuse of process defence”. The Swedish authorities are somehow conspiring to get Julian Assange.

[PS]: The minute he hits Swedish soil he will be arrested. He will be brought to a custody jail. He will be kept there in isolation for four days. He can only meet with me and my co-lawyer. On the fourth day he will be brought into a courtroom in handcuffs in front of a custody judge, and they will decide whether he will be kept in custody up until the final court case is tried, or if we if he will be released

What is so disturbing with [PS] statement is that he knows the truth but he makes false claims anyway…Julian Assange misrepresents facts. The Prosecution Authority made a public announcement declaring that Julian Assange would not have restrictions in prison.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 59 Error: Reference source not found

Julian Assange will have the right to meet with other people than [PS] and his co-lawyer, [TO]. What [PS]. claims is simply not true.

[PS] also is fully aware of the fact that Stockholms Tingsrätt in the ruling concerning Julian Assange’s arrest warrant specified that the prosecutor was not authorized to impose restrictions:

Åklagaren får inte tillstånd att meddela beslut om restriktioner. The prosecutor is not authorized to issue a decision on restrictions.

Julian Assange’s legal team does not tell the truth. For more than 20 months it’s been a well- known fact that Julian Assange will not have restrictions in prison. There are documents to prove it thanks to the openness and transparency guaranteed by the Freedom of Information Act. The Prosecution Authorities also made it clear in a public announcement a little more than a month prior to the broadcast of the program.

Four Corners willingly omits facts in order to support Julian Assange’s “Abuse of Process defence”.

[…]

Signals to the audience of gradations in accuracy

The ABC should make reasonable efforts, appropriate in the context, to signal to audiences gradations in accuracy, for example by querying interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong. In the program there are very few signals to the audience indicating gradations in accuracy. The signaling is biased too.

First example

When [the reporter] interviews [CB] he signals to the audience that the answer he received is not necessarily correct by asking extra questions.

[…]

For some reason [the reporter] omits some very important facts. He wants the audience to believe that Julian Assange had offered to come back to Sweden.

On or about the 15th of August Julian Assange had agreed to participate in a seminar on Afghanistan on the 6th of October and to be a speaker at a demonstration in Stockholm on the 9th of October. This information was in the public domain. The prosecutors were aware that Julian Assange had plans to return to Sweden for the seminar on or about the 6th of October. When [BH] proposed an interview for the 10th or the 14th of October the prosecutors answered they’d prefer an earlier date.

Julian Assange did not come back to Sweden for the seminar on the 6th nor the demonstration on the 9th. And he did not come to Sweden on the 10th or 14th as he had offered.

[CB] is most likely correct when he says he doesn’t believe that Julian Assange wanted to come back to Sweden. [The reporter] by asking extra questions, signals to the audience that [CB] might not be telling the truth.

Second example

60 Later in the program the US Ambassador [JB] is interviewed. For some reason [MR], Julian Assange’s US lawyer, is allowed to comment on the Ambassador’s statement as if the Ambassador’s statement isn’t correct.

[…]

… From the Ambassador’s comment it is not correct to state that he is allowed to contradict the claims that Assange would be extradited from Sweden to the US. What is absolutely clear is that [MR], one of Assange’s lawyers, is allowed to contradict the Ambassadors statement.

ABC’s justification for not making a corrective comment to [RF]’s false claim is they claim the Ambassador is allowed to contradict Assange’s claim that he is at risk for re-extradition to the US. This is another false claim. The Ambassador’s comment was contradicted by [MR]. Nobody from the “other side” was allowed to comment on [RF]’s comment.

ABC acknowledges today that [RF]’s comment is inaccurate. In a comment hidden in the transcript section we can from the 16th of May 2013 read:

**Clarification (May 16, 2013): [RF]’s reference to two men removed from Sweden to Egypt by the CIA as "Swedish citizens". They were not Swedish citizens but asylum seekers who had been permitted to stay in Sweden while their applications for asylum were processed.

If a corrective comment should have an effect it should be placed at the beginning of the text about the program. Not at the end of the transcript section.

[…]

As one can see from the two examples above [the reporter] does what he can to signal to the audience that “the other side” is not be trusted. By asking extra. By doing so he is helping the Assange side. [The reporter]’s behaviour is partisan as if he was part of Julian Assange’s legal team. The “other side” is never allowed to comment on any of [the reporter]’s, Julian Assange’s or his legal team’s statements. The signaling is surely one sided.

Omitted facts

[…]

Julian Assange is charged

Julian Assange and his supporters have on numerous occasions claimed that he is not charged. A claim that is false. In a detailed essay Juris Doctor [CW] examines when a person is considered charged in Sweden.

Clearly, being ‘charged with a criminal offence’ cannot mean the act of prosecution according to Swedish domestic law. The concept has an autonomous meaning, and the Swedish Supreme Court has had an opportunity to examine at which stage of the criminal proceeding in Sweden, a person would be considered as being ‘charged’ according to the autonomous meaning of the ECHR. There is no doubt that – at the latest – a person will be considered ‘charged’ when he or she is suspected of crime on reasonable grounds. The question is whether a person may be considered as being ‘charged’ at an earlier stage. In a case concerning the appointment of a public defence counsel, the Supreme Court stated in general that a person should be treated as ‘charged with a criminal offence’ when ‘the authorities have taken some measure

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 61 Error: Reference source not found

with the consequence that a person’s situation is substantially affected by the fact that there is a criminal suspicion against him’.

Assange’s legal team accepts the fact that he is charged even though they at the same time wants the public to think he is not charged. In the skeleton argument they claim that Julian Assange is entitled to be informed of the charges against him just as a person that is charged with a crime.

In Sweden a person cannot be arrested and detained without being charged with a crime. If Julian Assange was not charged with a crime his legal team would have complained.

Anybody that makes a documentary of a legal case in Sweden must know the basic laws of the country. It is not possible to be arrested and detained in Sweden without being charged with a crime.

Background to Julian Assange’s claim he is not charged

There is nothing that supports Julian Assange’s and his legal team’s claim that he is not charged. The reason he claims that he is not charged is that he believes it is a good argument in order to depict the Swedish Justice System as corrupt. That in Sweden persons can be detained for extended time without charge.

How Julian Assange and his legal team constructed the argument that he is not charged is explained in the Skeleton Argument 7-8 February 2011, paragraph 35 and 3671.

The legal team first quotes an e-mail from the prosecutor [MN] to the Australian Ambassador in Stockholm:

“I want to empathize that before a decision to prosecute the defendant has been made, he will be given the right to examine all documents relating to the case. If the prosecution goes ahead, the suspect will have the right to receive a copy of the investigation”.

Then the legal team quotes a mail from Minister-Counselor [PG] who relays the Australian Ambassador’s interpretation of a phone-conversation with prosecutor:

On 16 December the Australian Ambassador spoke directly to Ms. [N] and confirmed that the key points she wished to convey were:

• if a decision is made to charge Mr. Assange, he and his lawyers will be granted access to all documents related to the case (no such decision has been made at this stage)

It is clear that there is a mix-up between the concept to charge with the concept to prosecute (to indict). Ms [N] made it clear that if Mr Assange is prosecuted he will be granted access to all the documents.

It is, therefore, clear from the foregoing, official diplomatic communications between Ms. [N] and the Australian High Commission (Mr. Assange’s consular representatives), in December 2010 (after the issuance of the EAW on 2 December 2010), with reference to the underlined passages above, that:

• “a decision to prosecute the defendant” has not been made yet. In other words, the Swedish Prosecutor has not yet decided whether or not to prosecute Mr. Assange;

62 • “a decision to charge Mr. Assange” has not yet been made. “No such decision has been made at this stage”;

• no such decision will be made until Assange and his lawyers are given an opportunity to examine all the documents (an opportunity that has not yet been given and had not been given at 2 December).

Then the legal team makes a false claim. There is no official diplomatic communications between Ms. [N] and the Australian High Commissioner where Ms. [N] states “if a decision is made to charge Mr. Assange, he and his lawyers will be granted access to all documents related to the case (no such decision has been made at this stage)”. This is only mentioned in a mail from Minister-Counselor [PG] to the legal team. And as shown above there is a mix-up. Ms [N] states: “before a decision to prosecute the defendant”.

[…]

Facts on extraditions to the US for political and military crimes

The program claims that Julian Assange could be charged with conspiracy to commit espionage, a political crime. [The reporter] presents information in a sinister way to convince the audience that it is likely that Julian Assange, if charged by the US, could be re-extradited from Sweden to the US. Facts indicate something very different.

Sweden does not extradite individuals for political or military crimes. In the last 50 years not one individual have been extradited from Sweden to the US charged with a political or military crime. There have been more than 430 cases. In August 1992 a CIA-defector, [ELH], was released from Sweden even though US authorities wanted him extradited to the US.

Sweden’s most senior expert on extradition, [KT], is of the opinion that it is extremely unlikely that Julian Assange would be extradited to the US. Most experts on Swedish extradition law agree. In order to have Julian Assange extradited he must be accused of an extraditable offence. Espionage or conspiracy to commit espionage is not an extraditable offence. If the US would request Julian Assange’s extradition while he is in Sweden the Swedish Supreme Court is involved. So is the Swedish government. And since he arrived in Sweden on an EAW the British Secretary of State is involved and so are the British courts.

The fact is that it is not even likely that the US would request Julian Assange’s extradition when he is extradited to Sweden. The US does have a long history of not requesting extradition when they are aware that an extradition would not be granted. Espionage or conspiracy to commit espionage is not an extraditable offence.

[…]

[RF] and the Pirate Party

[Reporter]: It might sound like a whacky organization, but in Sweden it's taken seriously enough to have a member in the European Parliament. The Party's close to WikiLeaks.

The Swedish Pirate Party is a “whacky organization”. It was founded in 2006 by [RF]. One of the main issues for the party is file-sharing, read copying of music and films. The Pirate Party is for legalizing file sharing. In the general election of 2006 the party received 0,63 % of the votes. In 2010 0,65 %, that is 38 491 votes. Far from the 4 % needed to get a seat in the parliament. The main supporters of the party are men between 18 and 29.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 63 Error: Reference source not found

In February 2009 the founders of the Pirate Bay, a website supporting illegal copying of films and music, where put on trial for copy-right infringement. The trial was a major news event in Sweden and many demonstrations were organized in support of the Pirate Bay. As a result the Pirate Party received 7,1 % of the votes in the June 2009 elections for the European Parliament.

The Pirate Bay was founded in 2003. It is one of the world’s largest sites for file-sharing, illegal downloading of copy-righted material. Many of the world’s largest media conglomerates are US companies. They are of the opinion that illegal downloading is a threat to their businesses. For some time they wanted to take action against the Pirate Bay.

[…]

No leaks from the police and Prosecution Authority

There are no confirmed leaks from the police or the Prosecution Authority. All the documents that the media and other individuals have obtained have been lawfully handed out according to the Freedom of Information Act.

In August 2010 Kristina Edblom of Aftonbladet, a Swedish tabloid, requested to obtain the police files in the Assange case. On the 23rd the legal department of Stockholm’s Police Department granted her request and sent 39 pages of police documents.7

The prosecutor in charge on the 20th of August, [MHK], did confirm to Expressen that a police investigation regarding Julian Assange was ongoing…

Confirmed leak from Julian Assange’s legal team

The only confirmed leak is the Detention Memorandum leaked from Assange’s legal team’s office. The Memorandum first appeared on the Flashback forum at 9:11 pm on the 30th of January 2011 77. We know the person who leaked the document and we from where the Memo originates. We can confirm the Memo originates from Assange’s legal team.

It is noteworthy that the program does not mention the only confirmed leak but instead tries to implicate the prosecutors and the police in leaking.

64 Attachment D ABC’s submissions

ABC’s response to complainant 1 – 25 March 2013 Extracts from the ABC’s submissions to complainant 1 are as follows:

Having reviewed the broadcast, we cannot agree with your claim that it was ‘one-sided’. The report included a broad range of principal relevant perspectives, none of which were unduly favoured over any other. It is important to understand that impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.

The perspective of Assange’s lawyers were clearly attributed in the broadcast as their own personal view, expressed in the interest of Assange. They were not presented as indisputable statements of fact, as you claim. Those perspectives were not unduly favoured over any other in the broadcast.

We cannot agree with your claim that the broadcast ignored the perspective of the two Swedish accusers of Assange. The program sought their contribution but they were not willing to participate.

The program made repeated efforts to seek their response to the issues raised in the report through their lawyer, who was also very reluctant to respond in any detail about the issues being examined in the broadcast. We are satisfied that the program made reasonable efforts to seek and include their perspectives.

We cannot agree that there was any editorial requirement for the report to note that Assange had applied for Swedish residency or a work permit. The aspect of the report that you identify was focused on the fact that Wikileaks had acquired the use of a former nuclear shelter to house its servers, clearly establishing that it intended to set up and operate from that location. We cannot agree that because the report did not specifically note that Assange had applied for work and residency visas that it is in breach of the Corporation’s editorial standards for accuracy.

Regarding your concern about the reporter’s reference to the question of consent, this is what the reporter said, immediately following the claim of Assange’s Swedish lawyer that the sex was consensual. [Reporter]: The sex with [SW] in her apartment might have been consensual, but critically there was a question over whether Assange had used a condom…

Later in the broadcast, the reporter states the following: [Reporter]: …She would later tell police that Assange had violently pinned her down and ignored her requests to use a condom. Assange denies this’

We are satisfied that these statements by the reporter clearly note there was a question over whether the sex was consensual and whether he had used a condom, the two principal allegations made against Assange. We cannot agree with your claim that the issue of consent was ‘ignored’ and we are satisfied that sufficient context was provided on this issue and it is therefore in keeping with the accuracy requirements in section 2 of the ABC Code of Practice.

In regard to your statement that neither of the women ‘tried to get the police to force Assange to take an STD test’, we agree with you. The reporter never said anything of this sort. The

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report accurately states, based on the UK Supreme Court Agreed Statement of Facts and Issues in the case, that [AA] and [SW] went to Central Stockholm’s Klara police station to see if they could compel Assange to take an STD test should he refuse’. As was made clear in the broadcast, they went to the police station to seek advice, to see if they could compel Assange to take a test, not to ask for something to be enforced. You have misrepresented what the reporter actually said.

[…]

In regard to your concern that Assange’s Swedish lawyer [PS] stated that the women did not file charges against Assange...

We are satisfied that this broadcast of the report is in keeping with the accuracy standards in section 2 of the ABC Code of Practice. It was a straightforward account of the events that it describes and was not in any way misleading to the program’s audience. We cannot agree with your interpretation that ‘so much was made’ of the fact that the women did not file charges.

Your personal interpretation of the report’s coverage of Assange’s right to leave Sweden is noted. Four Corners has advised that it based its understanding of Assange’s right to leave Sweden on the Agreed Statement of Facts and Issues ... [which] made it clear that the prosecutor gave Assange permission to leave the country…

[…]

We cannot agree that the reporter’s statement that the Swedish government ‘upped the ante’ by issuing an Interpol Red Notice is in breach of the ABC’s editorial standards. We note your claim that Assange lawyer [JR] said that a Red Notice is ‘reserved for terrorists and dictators’…

[…]

Stating that a Red Notice is ‘normally the preserve of terrorists and dictators’ is distinctly different from the statement that you have attributed to [JR], that Red Notices are ‘reserved for terrorists and dictators’.

We are satisfied that the audience would clearly understand that as Assange’s legal representative, she was clearly making a dramatic comparative assessment between her client and ‘terrorists and dictators’ as she was obviously representing his interests. We do not believe that this statement from a lawyer, arguing the interests of her client, would be accepted by the audience as a factual claim beyond dispute.

We cannot agree with your claim that ‘[the reporter] speculates that extradition to Sweden would be a back door onward to extradition to the USA’. We are satisfied that it would be abundantly clear to the program’s audience that the reporter attributed this belief to Assange…

[…]

We cannot agree that the reference to Claes Borgstrom as a lawyer was materially misleading to the program’s audience. As you note, there is no easy English translation for his Swedish title and we do not believe there was any editorial requirement to spell it out. We are satisfied that ‘lawyer’ is a reasonable title to use in this context…

Four Corners understands that [SW] did not sign the police record of interview after becoming distressed at the way the police interview had evolved, after she had initially approached them with the intention of seeking advice about having Assange tested for an STD, a fact agreed

66 upon in the UK Supreme Court Agreed Statement of Facts and Issues. That document also confirms that although she attended with the intention to seek that advice, the police treated her visit as the filing of a formal report for rate.

Four Corners has advised that the program referred to copies of notes by police …[which] state...

‘The interrogation began at 16.21 and was concluded before being completed or reviewed or approved at 18.40’...

Given that the interview was concluded before being completed or reviewed or approved, it appears unlikely that the reason she did not sign the statement was your belief it ‘could be because they did not wish to keep the woman waiting around while the paperwork was completed’. Given the known circumstances and context, Audience and Consumer Affairs is satisfied that the program met the editorial requirement to make reasonable efforts to ensure the material facts were accurate and presented in context …We believe it was reasonable for the reporter to state that [SW] ‘refused’ to sign the statement, given that the interview was concluded prematurely on the insistence of [SW] and not the police, who it could reasonably be presumed would have a professional responsibility to ensure that their procedures were properly completed, reviewed and approved given the seriousness of the matter.

[…]

…At no stage in the broadcast did the reporter say that there were ‘documents’ leaked by authorities, as you claim...

[…]

Four Corners has provided the following statement in response to your claim:

‘Leaking statements made by the two women, as Four Corners said in the program, and leaking documents are two different things. Statements can be verbal, documents are almost certainly physical. Four Corners did not use the word ‘document’. Secondly, the program does not discuss its sources but we can confirm that the prosecutor’s office admitted to us that it had provided information to Expressen. [TM]’s reporters knew that something had happened to Assange, but it was only after contacting the prosecutor’s office that they discovered the full nature of the alleged offence. This was a leak’.

[…]

We cannot agree with your claim that the reporter ‘got it so wrong’ by questioning the process by which ‘within 24 hours, a more senior prosecutor dismissed the rape allegations, leaving only the lesser accusation of molestation’. Four Corners is a current affairs program that provides context and analysis of the subjects it covers and we are satisfied that to an Australian audience, this may very well appear to be ‘a strange twist’ in the case and worthy of examination. We cannot agree that this aspect of the report is in breach of the ABC’s editorial standards.

Your personal expectation that the report should have provided more detail and context on Assange’s ‘offer to return to Sweden’ is noted. We cannot agree that there was any editorial requirement for the program to provide the level of detail you describe and we cannot agree that there has been a breach of the Corporation’s editorial standards on the treatment of this

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issue in the broadcast. It is important to understand that impartiality does not require that every facet of every argument is presented. Given the obvious time constraints of a 45 minute program examining such a complex subject, not every detail of this issue can be included in the one broadcast.

Your comments on Assange’s claim that he could not claim asylum once in Sweden are noted. This is what he said in the broadcast…We believe it would be clear to the program’s audience that Assange is claiming that if he returned to Sweden, he would be incarcerated and not in a position to claim asylum from the US government, who he argues will try to onward extradite him to the US. Immediately following this statement in the broadcast, the US Ambassador to Australia features stating that the US has no interest in seeking Assange’s extradition. We cannot agree with your claim that this aspect of the report lacked ‘balance’ and we cannot agree with your claim that the report portrayed a ‘negative appraisal of Sweden throughout’.

The perspectives of Assange’s lawyers were clearly presented in the report as just that – lawyers representing the interests of their client. Their perspectives were not presented as indisputable statements of act, as you claim. They were clearly introduced to the audience as his lawyers and there would be no confusion whatsoever regarding the interests they represented.

Four Corners did not even come close to ‘basing their entire show’ on the assumption that Assange could be extradited on espionage charges to the United States. In fact, having already covered the concerns of Assange and his supporters that the US was seeking to onward extradite him to the US should he return to Sweden, Four Corners noted that it had obtained a copy of a subpoena from a Grand Jury that had been formed to examine evidence for possible charges relating to espionage. It did not state that Sweden would seek to onward extradite Assange to the US on espionage charges as you claim. The Grand Jury issue was examined in the broadcast as a separate issue and we cannot agree that there was any editorial requirement for the program to note that Sweden does not extradite for espionage within this context.

[…]

Sweden was not presented by Four Corners as a ‘lap dog’ of the US, that reference was clearly attributed to [RF], from the Swedish Pirate Party. The reporter did set out come context on why [RF] held that view and we are satisfied that his references were accurate and in context…

[…]

We are satisfied that as a person with a close association to Assange and who is a member of the Swedish Parliament, [RF] presented a principal relevant perspective on the issues examined in the report. The ABC understands that two Egyptians renditioned by the Swedish Government were asylum seekers. The claim they were Swedish citizens was clearly made by [RF], not Four Corners. However, given that Assange is also not a Swedish citizen, we cannot agree that this statement is in breach of the accuracy standards in section 2 of the ABC Code of Practice, as it was not materially misleading within the context of the concern expressed by Assange and his supporters that Sweden had a history of complying with US government demands.

[…]

68 ABC’s response to complainant 2 – 16 May 2013 Extracts from the ABC’s submissions to complainant 2 are as follows:

[…]

The report included a broad range of perspectives, none of which were unduly favoured over another, and we believe that it would be clear to any reasonable viewer that it was not ‘one- sided’. It is important to understand the impartiality does not require that every perspective received equal time, nor that every facet of every argument is presented. There was no editorial requirements for Four Corners to include counter perspectives or arguments to every statement or opinion that is broadcast, particularly when those comments are not presented as factual statements, such as the views of Mr Assange’s lawyers.

The claims of Mr Assange’s lawyers were not presented in the report as factual statements beyond dispute, as you claim. They were clearly presented as the views of lawyers representing the interests of their client. We are satisfied the program’s audience is able to distinguish between a statement of indisputable fact and a matter of opinion or interpretation expressed by a professional advocate arguing on behalf of their client’s best interests. We are satisfied those statements were clearly attributed to their source, allowing the audience to understand the status of the information presented.

We have concluded there was no editorial requirement for the program to question Assange’s lawyer’s claim about his being restricted if arrested and imprisoned on return to Sweden. He has not been arrested and imprisoned in Sweden so it is speculation and not material. The focus of this report was a detailed examination of the events that occurred in Sweden and the nature of the relationship Assange had there the led to him being in his current predicament, being granted asylum in the Ecuadorian Embassy in London. We are satisfied that his lawyer’s speculations about what treatment he might face should he return to Sweden and be arrested are not material to the focus of the report. This issue represented a very minor aspect of the report and we are satisfied that its treatment in the broadcast would not materially mislead the program’s audience…

[…]

We note your statements that ‘Sweden has not extradited to the US one single person for a political or a military crime in the last 50 years’ and the case involved two Egyptian asylum seekers being rendered to Egypt from Sweden under direction from the US government ‘has nothing to do with extraditions to the US’. The reporter stated, with reference to the Egyptian asylum seekers case, that Sweden had a history of ‘complying with US wishes’ and that it had acted ‘illegally in past extraditions involving the US’. The program understands that two men were forcibly handed over to the CIA by Swedish security service agents as part of a so called terror suspect ‘rendition’ operation carried out by the US spy agency. Following an investigation by the Swedish Parliamentary Ombudsman and UN human rights agencies, the Swedish government has since acknowledged it made a mistake and awarded the pair significant sums of compensation. The ABC understands that the UN Committee on Torture ruled that Sweden breached [AA]’s rights by allowing him to be expelled to a country where he was likely to be tortured and the guarantees provided by Egypt were insufficient to assure that he was not at risk of torture.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 69 Error: Reference source not found

While noting this case as a basis for the concern expressed by Assange and his supporters, the reporter did not make any reference to the extraditions to the US, but extraditions involved the US.

[…]

We are satisfied that this statement is keeping with the accuracy standards in section 2 of the ABC Code of Practice and, given the report’s examination of Assange’s claims that the Swedish case against him was a first step to possible onward extradition to the US, we are satisfied this issue was relevant and presented in context, noting the fact that the Swedish government did have a history of assisting the US in removing foreign nationals from Sweden upon request from the US. We are also satisfied that the reporter’s reference to ‘extradition’ rather than ‘rendition’ or ‘deportation’ was not materially misleading to the program’s audience and is therefore not in breach of the accuracy standards in section 2 of the ABC Code of Practice.

[…]

Audience and Consumer Affairs agrees that [RF]’s reference to the two men removed from Sweden to Egypt as ‘Swedish citizens’ was inaccurate. They were not Swedish citizens, but asylum seekers who had been permitted to stay in Sweden while their applications for asylum were processed. The program has attached an editor’s note to the online transcript of the report clarifying this fact. However, we have concluded that this is not a breach of the accuracy standards in section 2 of the ABC Code of Practice as this reference by [RF] was not materially misleading to the program’s audience on the issue being examined in that aspect of the report; that the Swedish government had a history of adhering to US government requests to hand over foreign nationals for removal from the country, as a basis for the concerns expressed by Assange and his supporters. Assange is not a Swedish citizen, so the fact that the Egyptians were also not Swedish citizens means [RF]’s claim that they were not material.

[…]

ABC’s submissions to the ACMA – 8 August 2013 The ABC submitted to the ACMA that:

You have requested further comment and information regarding the ABC’s compliance with standard 2.1 of the Code of Practice in relation to the statement ‘and there’s evidence that Sweden has acted illegally in past extraditions involving the US’ (Four Corners, 23 July 2012).

I note that your letter includes the following excerpt from the program transcript:

[RF]: Sweden has frankly always been the United States' lap dog and it's not a matter we are particularly proud of. The Swedish Government has... essentially, whenever a US official says, "Jump", the Sweden Government asks, "How high?"

[Reporter]: If that seems like a heavy handed comment, there's evidence to back it up.

70 [RF]: There was a famous case in last decade where a couple of Swedish citizens were even renditioned by the CIA in a quite torturous manner to Egypt where they were tortured further, which goes against every part of Swedish legislation, every international agreement on human rights - and not to say human dignity.

As [the reporter] referred to ‘evidence to back it up’, a still image of an Amnesty International report was presented to viewers. That report is available here - http://www.amnesty.org/en/library/asset/EUR42/001/2006/en/97edf527-d3d2-11dd-8743- d305bea2b2c7/eur420012006en.pdf. It methodically sets out evidence in support of the claim that Sweden had acted illegally in extraditions of two men, and that agents of the USA were involved in those extraditions.

The very next line from the ABC reporter was as follows:

[Reporter]: A United Nations investigation later found against Sweden. The country was forced to pay compensation.

Details of two relevant United Nations investigations are available here - http://www.refworld.org/cgi-bin/texis/vtx/rwmain? page=search&docid=47975afa21&skip=0&query=alzery - and here - http://www.refworld.org/cgi-bin/texis/vtx/rwmain? page=search&docid=42ce734a2&skip=0&query=agiza.

The transcript indicates that [the reporter] referred to ‘Sweden … [acting] illegally in past extraditions’; [RF] referred to the Alzery/El Zari and Agiza cases as ‘renditions’. The complainant refers to these as instances of ‘rendition/deportation’. There are a range of established meanings for these terms.

The Oxford English Dictionary relevantly includes the following definitions:

extradition

The action of giving up (a person) to the authorities of a foreign state; esp. the delivery of a fugitive criminal to the authorities of the state in which the crime was committed. Hence in gen. sense: Surrender (of a prisoner) by one authority to another.

rendition

Law (chiefly U.S.). The extradition of a fugitive who has fled to another jurisdiction.

deportation

The action of carrying away; forcible removal, esp. into exile; transportation.

The Macquarie Dictionary relevantly includes the following definitions:

extradition

noun the surrender of a fugitive from justice or a prisoner by one state or authority to another.

extraordinary rendition

noun the transfer of a prisoner to a country where there is less legal restraint on torture than in the country in which they were previously held, in order to extract information from them. Also, rendition.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 71 Error: Reference source not found

deportation

noun the lawful expulsion of undesirable aliens and other persons from a state.

There was no inaccuracy in either the reporter’s use of the term ‘extradition’ or Mr [RF]’s use of the term ‘rendition’. Given the lack of precise and narrow meanings of these terms, the difference between them was not material in this program.

Finally, whether or not Mr [A] and Mr [EZ] were ‘Swedish citizens’ was not a material fact for the purposes of this program. What was material in the relevant passage was the conduct of Sweden in extraditions involving the US. The program team nonetheless undertook to clarify the reference and an Editor’s Note was added to the transcript on 16 May.

As illustrated above, the material facts set out in the program were presented accurately and in context. There has been no breach of clause 2.1.

ABC’s submissions to the ACMA – 2 December 2013 Extracts from the ABC’s submissions to the ACMA are as follows:

Statements concerning a witness’s refusal to sign her testimony

The program made reasonable efforts to ensure that the details of [SW’s] police interview were presented accurately and in context. In doing so, the program relied upon the various accounts of witnesses as to [SW’s] state of mind at the time. It is highly relevant that witnesses agree that – as reported in the program – [SW’s] intention was not to make a complaint about Assange, but rather to find out whether she could compel him to undergo testing for sexually transmitted disease:

[AA’s] friend [JW] told police:

‘I got the impression that [AA] had some kind of sisterly attitude toward the younger woman, that she wanted to help her. And therefore, as I understood it, [AA] wanted to accompany her to the police to find out whether or not it was possible to force Julian to take an HIV test.’

[SW’s] brother gives the same explanation for the visit to the police station:

‘[SW] … explained that she did not want to file charges against Julian, but only wanted him to get tested for infection. She went to the police to seek advice and then the police had filed charges.’

[AA’s]friend [DB] gave the same explanation in his police interview:

‘… [AA] said: “[SW] has asked me to go to the police with her, and I have decided to follow along and support her in this. But we are not planning to file charges against Julian; we just want to go there and tell our stories.” … I don't know anything about police technicalities, but then [AA] said: “Because all of a sudden we were two women with a statement about the same man, it became [a matter for investigation] and thus became a formal complaint, even though we had not filed a complaint.” And so it became a complaint …’

[SW] had lost control of the situation. Her friend, [MW], told police:

72 ‘… [W]hen [SW] visited the hospital and the police, it did not turn out as [SW] wanted. She only wanted Julian to get tested. She felt that she had been run over by the police and others.

The interviewing police officer provided the following account:

In the course of the interview, [SW] and I were informed that Julian Assange had been arrested in absentia. After that, [SW] had difficulty concentrating, as a result of which I made the judgement that it was best to terminate the interview. But [SW] did mention that Assange was angry at her. There was not enough time to obtain any further information about why he was angry at her or how this was expressed. Nor did we have time to discuss what had happened afterwards. The interview was neither read back to [SW] nor read by her for approval; but [SW] was informed that she could do so at a later date.

Witnesses consistently state that [SW] approached the police with a specific objective in mind: she did not intend to file a complaint; she wanted to find out if Assange could be compelled to take an HIV test. Instead, on the basis of [SW’s] statement and before she had even finished speaking to police, Assange had been arrested for sexual offences. [SW] was concerned that Assange was already angry with her. She was upset and judged to be in no state to continue with the interview. Given this scenario, it was reasonable for the program to simply state that [SW] refused to continue with the interview and refused to sign the record of interview. [SW’s] was the only statement to police that was not read back or approved or signed by the witness.

Statements concerning leaks

The term ‘leak’ was used to refer to the unauthorised disclosure of material to the media.

Four Corners has advised that the Prosecutor’s Office confirmed to the program that there was an investigation into the leaking of Assange’s name and information relating to him. [KR] told the program this both on and off-camera. Four Corners advises that the reporter asked the Prosecutor’s Office on camera, ‘Has the prosecutor’s office looked at prosecuting the person who leaked the personal information about Julian Assange’s allegations of rape that were on the front page of the local newspaper here?’. [KR] replied, again on camera, that the Prosecutor’s Office was not investigating as it was ‘a matter for the Ombudsman in Sweden. We don’t do parallel investigations’. The Prosecutor’s Office considered the disclosure of this information to be a leak.

The program’s direct questioning of the Expressen Editor and the Prosecutor’s Office spokesperson on this issue satisfied the requirement reasonable efforts to have been made.

Following discussion of the first leak (discussed above), the reporter stated:

[REPORTER]: It was now the case took a strange twist. Within 24 hours, a more senior prosecutor dismissed the rape allegations, leaving only the lesser accusation of molestation. Assange willingly went to the police on August 30th and made a statement.

ACMA Investigation Report – Four Corners broadcast by the ABC on 23 July 2012 73 Error: Reference source not found

Attachment E

In determining whether or not material complained of is compliant with the ABC’s obligations under Standard 4 of the Code, the ACMA generally has regard to the following considerations:  The meaning conveyed by the relevant material is assessed according to what an ordinary reasonable viewer would have understood the program concerned to have conveyed. The Court’s interpretation of the ordinary reasonable viewer has been detailed above in the considerations under accuracy.  Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgement, or giving effect to the affections or enmities of the presenter or reporter in respect of what is broadcast. In this regard: o The ACMA applies the ordinary English meaning of the word ‘impartial’ in interpreting the Code. The Macquarie Dictionary (Fifth Edition)11 defines ‘impartial’ as: ‘not partial; unbiased; just’. It defines ‘partial’ to include: ‘biased or prejudiced in favour of a person, group, side, etc., as in a controversy’. ‘Bias’ is defined as: ‘a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question’. o The ACMA considers that a helpful explanation of the ordinary English usage of the term ‘bias’ is set out by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng12 as follows: ‘Bias’ is used to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’.13 It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgement. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision- making, for bias is ‘anything which turns a man to a particular course, or gives the direction to his measures’.  A perspective may be quite reasonably favoured if all the evidence supports it; it is only where the favouring is undue in some way that the Code is breached.  A program that presents a perspective that is opposed by a particular person or group is not inherently partial. Whether a breach of Standard 4.1 has occurred will depend on the themes of the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.  Presenters and reporters can play a key role in setting the tone of a program through their style and choice of language. The manner in which a report is presented or reported can influence the conclusions that an ordinary reasonable listener would draw from a broadcast.  The nature of current affairs reporting requires reporters and presenters to be questioning, and at times sceptical, in their analysis of important issues. However, while probing and challenging questions may be used to explore an issue, programs

11 Online edition at http://www.macquariedictionary.com.au 12 (2001) 205 CLR 507 at 563 [183] Gleeson CJ and Gummow J at 538 [100] agreeing. 13 Oxford English Dictionary (Second Edition), meaning 3(a).

74 must demonstrate a willingness to include alternative perspectives without prejudgement.

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