Bank Julius Baer vs. Wikileaks lawsuit
Encyclopedia
Bank Julius Baer vs. Wikileaks lawsuit was filed by Bank Julius Baer
against the website WikiLeaks
.
In early February 2008, a California judge forced Dynadot
, the domain registrar of wikileaks.org, to disassociate the site's domain name
records with its servers, preventing use of the domain name to reach the site. Initially, the bank only wanted the documents to be removed (WikiLeaks had failed to name a contact person).
The judge's actions roused media and cyber-liberties groups to defend WikiLeaks' rights under the First Amendment
and brought renewed scrutiny to the documents the bank hoped to shield.
The judge lifted the injunction and the bank dropped the case on 5 March 2008.
for clients from 1997 to 2002 had been leaked. They interviewed the local employees with a polygraph
as per company policy. The bank was unsatisfied with the answers of Cayman unit COO Rudolf Elmer
, and terminated his employment. In June 2005, the leak was reported by the Swiss financial weekly Cash and the Wall Street Journal, though details of individual accounts were not reported on. In December 2007, Elmer released documents related to WikiLeaks regarding surveillance of him and his family. The next month, some of the leaked account data began appearing on Wikileaks. Contributors to WikiLeaks allege that these provide evidence of asset hiding, money laundering
and tax evasion
. Ten account holders in the United States, Spain, Peru, Germany, Greece, Hong Kong, and Switzerland have been identified so far on WikiLeaks.
According to Daniel Schmitt
's analysis for WikiLeaks, leaked account data exists from after the date that Elmer left the Caymans.
On 16 January 2011, Elmer announced he would hand over offshore account details of 2,000 "high net worth individuals" to WikiLeaks. Then he would return to Switzerland from exile to face trial. Julius Baer says Elmer falsified the documents.
, citing the DMCA. On 18 February 2008, Judge Jeffrey White
of the U.S. District Court for the Northern District of California issued a permanent injunction against Dynadot forcing it to "lock the wikileaks.org domain name". Mirror sites, such as http://wikileaks.be , were not affected. The text of the posted injunction
stated that "immediate harm will result to Plaintiffs in the absence of injunctive relief", as is required for injunctions to be granted. The general assumption is that some leaked documents were alleged by the bank to be libellous, trade secrets, copyright
ed, or otherwise prohibited for distribution, in a manner that would cause harm to it.
WikiLeaks had not sent a representative to the hearing at which the injunction was granted. According to an editorial on the WikiLeaks website, Julius Baer had some communication with WikiLeaks before going to court to get the injunction, but did not inform WikiLeaks in which city it would seek the injunction and did not present to the court these email communications.
The law firm representing Baer works primarily in the entertainment industry in Los Angeles. They applied for and got the injunction at a court in San Francisco - 450 miles (700 km) from Los Angeles.
. Julius Baer had already got an injunction against WikiLeaks, prohibiting WikiLeaks from circulating the documents that Julius Baer wanted to suppress, without attracting significant attention from news media. But then Julius Baer drew a huge amount of attention to itself by seeking and getting a second injunction imposing a measure that would suppress not only the information that Julius Baer considered embarrassing, but also the entire WikiLeaks website consisting of all manner of documents presented as evidence of all manner of crimes - both in corporations and in governments, including human rights abuses - by many alleged criminals worldwide in cases having nothing to do with Julius Baer. For example, the site has given exposure to evidence of human rights abuses in China and political corruption in Kenya. The WikiLeaks website claims to have 1.2 million documents that users have posted anonymously to provide evidence of incidents of wrongdoing that deserve public scrutiny. Only 14 of these documents were pertinent to the Julius Baer case.
After the injunction was initially granted, it was successfully challenged in a joint action by the following intervenors:
A similar brief was filed by:
Another brief in support of WikiLeaks was filed by:
The First Amendment of the United States Constitution is stated in terms of establishing the right to propagate information. These legal briefs mentioned legal precedents stating that the First Amendment also establishes the right of citizens to read information. One of the participants in the successful challenge to the injunction was Jordan McCorkle, an ordinary citizen who reads the WikiLeaks website regularly.
As well as backfiring in terms of the attention it attracted, the injunction could not be entirely effective in suppressing the website anyway in that the alternate WikiLeaks domains
were unaffected, and WikiLeaks was still available directly by its IP address, 88.80.13.160. To shut down these access methods, it would be necessary to pursue injunctions in the jurisdictions where they are registered, or where the servers reside, which are deliberately scattered to make this difficult.
The law firm representing Baer was Lavely and Singer. They claimed to be acting, in part, to protect Baer's customers from having information about the customers become public. But one of the documents filed in court by Lavely and Singer identified one of the customers of interest by name as well as giving his street address.
A coincidental fire at the hosting company used by WikiLeaks, PRQ
, centered in a high power supply regulator serving the majority of the data center, shut down and destroyed some sections of the specific DNS and dedicated hosting server racks used by WikiLeaks the same week.
The bank dropped the case on 5 March 2008.
Julius Baer Group
Julius Bär Group is a Swiss banking firm which is the parent company of Bank Julius Bär, a traditional private bank based in Zurich, Switzerland. The firm dates itself back to the year 1890, when an exchange office was founded by Ludwig Hirschhorn und Theodor Grob. Joseph Michael Uhl and Julius...
against the website WikiLeaks
Wikileaks
WikiLeaks is an international self-described not-for-profit organisation that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Its website, launched in 2006 under The Sunshine Press organisation, claimed a database of more...
.
In early February 2008, a California judge forced Dynadot
Dynadot
-Expired auctions:Bid on domains about to expire or place a backorder for a domain pending deletion.-SSL:Both RapidSSL and AlphaSSL certificates are available for purchase.-Bank Julius Baer lawsuit:...
, the domain registrar of wikileaks.org, to disassociate the site's domain name
Domain name
A domain name is an identification string that defines a realm of administrative autonomy, authority, or control in the Internet. Domain names are formed by the rules and procedures of the Domain Name System ....
records with its servers, preventing use of the domain name to reach the site. Initially, the bank only wanted the documents to be removed (WikiLeaks had failed to name a contact person).
The judge's actions roused media and cyber-liberties groups to defend WikiLeaks' rights under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and brought renewed scrutiny to the documents the bank hoped to shield.
The judge lifted the injunction and the bank dropped the case on 5 March 2008.
Background
In 2002, the bank learned that records pertaining to the arrangement of anonymizing trusts in the Cayman IslandsCayman Islands
The Cayman Islands is a British Overseas Territory and overseas territory of the European Union located in the western Caribbean Sea. The territory comprises the three islands of Grand Cayman, Cayman Brac, and Little Cayman, located south of Cuba and northwest of Jamaica...
for clients from 1997 to 2002 had been leaked. They interviewed the local employees with a polygraph
Polygraph
A polygraph measures and records several physiological indices such as blood pressure, pulse, respiration, and skin conductivity while the subject is asked and answers a series of questions...
as per company policy. The bank was unsatisfied with the answers of Cayman unit COO Rudolf Elmer
Rudolf Elmer
Rudolf Elmer is a former employee of Swiss bank Julius Bär. He worked for the bank for close to two decades, the last position being overseeing the Caribbean operations of the bank for eight years until his dismissal in 2002...
, and terminated his employment. In June 2005, the leak was reported by the Swiss financial weekly Cash and the Wall Street Journal, though details of individual accounts were not reported on. In December 2007, Elmer released documents related to WikiLeaks regarding surveillance of him and his family. The next month, some of the leaked account data began appearing on Wikileaks. Contributors to WikiLeaks allege that these provide evidence of asset hiding, money laundering
Money laundering
Money laundering is the process of disguising illegal sources of money so that it looks like it came from legal sources. The methods by which money may be laundered are varied and can range in sophistication. Many regulatory and governmental authorities quote estimates each year for the amount...
and tax evasion
Tax evasion
Tax evasion is the general term for efforts by individuals, corporations, trusts and other entities to evade taxes by illegal means. Tax evasion usually entails taxpayers deliberately misrepresenting or concealing the true state of their affairs to the tax authorities to reduce their tax liability,...
. Ten account holders in the United States, Spain, Peru, Germany, Greece, Hong Kong, and Switzerland have been identified so far on WikiLeaks.
According to Daniel Schmitt
Daniel Domscheit-Berg
-External links:*, the whistleblower website started by Domscheit-Berg* collected news and commentary at Der Spiegel...
's analysis for WikiLeaks, leaked account data exists from after the date that Elmer left the Caymans.
On 16 January 2011, Elmer announced he would hand over offshore account details of 2,000 "high net worth individuals" to WikiLeaks. Then he would return to Switzerland from exile to face trial. Julius Baer says Elmer falsified the documents.
Legal action, injunction
In January, Bank Julius Baer began sending cease & desist letters to WikiLeaks and its domain registrar, Dynadot, for the wikileaks.org domain nameDomain name
A domain name is an identification string that defines a realm of administrative autonomy, authority, or control in the Internet. Domain names are formed by the rules and procedures of the Domain Name System ....
, citing the DMCA. On 18 February 2008, Judge Jeffrey White
Jeffrey White
Jeffrey Steven White is a United States federal judge serving on the United States District Court for the Northern District of California. He was appointed to the Federal Bench by President George W. Bush on July 25, 2002, and received his commission on November 15, 2002.-Early life, education,...
of the U.S. District Court for the Northern District of California issued a permanent injunction against Dynadot forcing it to "lock the wikileaks.org domain name". Mirror sites, such as http://wikileaks.be , were not affected. The text of the posted injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
stated that "immediate harm will result to Plaintiffs in the absence of injunctive relief", as is required for injunctions to be granted. The general assumption is that some leaked documents were alleged by the bank to be libellous, trade secrets, copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
ed, or otherwise prohibited for distribution, in a manner that would cause harm to it.
WikiLeaks had not sent a representative to the hearing at which the injunction was granted. According to an editorial on the WikiLeaks website, Julius Baer had some communication with WikiLeaks before going to court to get the injunction, but did not inform WikiLeaks in which city it would seek the injunction and did not present to the court these email communications.
The law firm representing Baer works primarily in the entertainment industry in Los Angeles. They applied for and got the injunction at a court in San Francisco - 450 miles (700 km) from Los Angeles.
Negative publicity for bank
The Julius Baer lawsuit drew a great deal more negative attention than would the leaks alone, due to the Streisand effectStreisand effect
The Streisand effect is a primarily online phenomenon in which an attempt to hide or remove a piece of information has the unintended consequence of publicizing the information more widely...
. Julius Baer had already got an injunction against WikiLeaks, prohibiting WikiLeaks from circulating the documents that Julius Baer wanted to suppress, without attracting significant attention from news media. But then Julius Baer drew a huge amount of attention to itself by seeking and getting a second injunction imposing a measure that would suppress not only the information that Julius Baer considered embarrassing, but also the entire WikiLeaks website consisting of all manner of documents presented as evidence of all manner of crimes - both in corporations and in governments, including human rights abuses - by many alleged criminals worldwide in cases having nothing to do with Julius Baer. For example, the site has given exposure to evidence of human rights abuses in China and political corruption in Kenya. The WikiLeaks website claims to have 1.2 million documents that users have posted anonymously to provide evidence of incidents of wrongdoing that deserve public scrutiny. Only 14 of these documents were pertinent to the Julius Baer case.
After the injunction was initially granted, it was successfully challenged in a joint action by the following intervenors:
- Electronic Frontier FoundationElectronic Frontier FoundationThe Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
(EFF) - American Civil Liberties UnionAmerican Civil Liberties UnionThe American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
(ACLU) - Project on Government OversightProject on Government OversightThe Project On Government Oversight , founded in 1981, is an independent non-profit organization in the United States which investigates and seeks to expose corruption and other misconduct. POGO assists whistleblowers and investigates federal agencies, Congress, and government contractors...
(POGO) - Jordan McCorkle
A similar brief was filed by:
- Public Citizen - founded by Ralph NaderRalph NaderRalph Nader is an American political activist, as well as an author, lecturer, and attorney. Areas of particular concern to Nader include consumer protection, humanitarianism, environmentalism, and democratic government....
- California First Amendment CoalitionCalifornia First Amendment CoalitionThe First Amendment Coalition is a nonprofit public interest organization committed to freedom of speech, more open and accountable government, and public participation in civic affairs...
(CFAC)
Another brief in support of WikiLeaks was filed by:
- Reporters Committee for Freedom of the PressReporters Committee for Freedom of the PressThe Reporters Committee for Freedom of the Press is an American nonprofit organization, founded in 1970, that provides free legal assistance to and on behalf of journalists. A number of prominent journalists presently sit on the organization's steering committee, including Dan Rather, and Judy...
(RCFP) - American Society of Newspaper EditorsAmerican Society of Newspaper EditorsThe American Society of News Editors is a membership organization for editors, producers or directors in charge of journalistic organizations or departments, deans or faculty at university journalism schools, and leaders and faculty of media-related foundations and training organizations...
(ASNE) - Associated PressAssociated PressThe Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
- (AP) world wide news agency, based in New York - Citizen Media Law Project
- E.W. Scripps Company - newspapers, TV, cable TV etc.
- Gannett Company, Inc. - the largest publisher of newspapers in the USA, including USA TodayUSA TodayUSA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
- Hearst CorporationHearst CorporationThe Hearst Corporation is an American media conglomerate based in the Hearst Tower, Manhattan in New York City, New York, United States. Founded by William Randolph Hearst as an owner of newspapers, the company's holdings now include a wide variety of media...
- media conglomerate which publishes the San Francisco Chronicle - Los Angeles TimesLos Angeles TimesThe Los Angeles Times is a daily newspaper published in Los Angeles, California, since 1881. It was the second-largest metropolitan newspaper in circulation in the United States in 2008 and the fourth most widely distributed newspaper in the country....
- National Newspaper Association (NNA)
- Newspaper Association of AmericaNewspaper Association of AmericaThe Newspaper Association of America is a trade association representing approximately 2000 newspapers in the United States and Canada. Member newspapers represented by the NAA include large daily papers, non-daily and small-market publications, as well as digital and multiplatform...
(NAA) - Radio-Television News Directors Association (RTNDA)
- Society of Professional JournalistsSociety of Professional JournalistsThe Society of Professional Journalists , formerly known as Sigma Delta Chi, is one of the oldest organizations representing journalists in the United States. It was established in April 1909 at DePauw University, and its charter was designed by William Meharry Glenn. The ten founding members of...
(SPJ) - also provided some legal funding
The First Amendment of the United States Constitution is stated in terms of establishing the right to propagate information. These legal briefs mentioned legal precedents stating that the First Amendment also establishes the right of citizens to read information. One of the participants in the successful challenge to the injunction was Jordan McCorkle, an ordinary citizen who reads the WikiLeaks website regularly.
As well as backfiring in terms of the attention it attracted, the injunction could not be entirely effective in suppressing the website anyway in that the alternate WikiLeaks domains
TLD
TLD is a three-letter initialism that may stand for:* Top-level domain, the last part of an Internet domain name* Tag Library Descriptor, an XML document that maps JSP tags to their handlers or associated files...
were unaffected, and WikiLeaks was still available directly by its IP address, 88.80.13.160. To shut down these access methods, it would be necessary to pursue injunctions in the jurisdictions where they are registered, or where the servers reside, which are deliberately scattered to make this difficult.
The law firm representing Baer was Lavely and Singer. They claimed to be acting, in part, to protect Baer's customers from having information about the customers become public. But one of the documents filed in court by Lavely and Singer identified one of the customers of interest by name as well as giving his street address.
A coincidental fire at the hosting company used by WikiLeaks, PRQ
PRQ
PeRiQuito AB is a Swedish Internet service provider and web hosting company created in 2004.-Ownership:Based in Stockholm, PRQ is owned by Gottfrid Svartholm and Fredrik Neij, two founders of The Pirate Bay.- Business model :...
, centered in a high power supply regulator serving the majority of the data center, shut down and destroyed some sections of the specific DNS and dedicated hosting server racks used by WikiLeaks the same week.
Injunction lifted, case dropped
Judge White dissolved the injunction on 29 February 2008 allowing WikiLeaks to reclaim its domain name.The bank dropped the case on 5 March 2008.