WikiLeaks’ Struggle against Visa and Mastercard

Posted: July 28, 2011 in Uncategorized
24th July 2011
 
Background

In the initial days of a collaborative release of a database of 250,000 State Department cables by WikiLeaks and its media partners The Guardian, Der Spiegel, Le Monde, El País, and The New York Times, WikiLeaks faced a wide spectrum of attacks on its infrastructure and financing.

On 7 December 2010, DataCell Ltd (which had been processing credit card donations to WikiLeaks since early Fall) announced that Visa Europe had contacted them requesting suspension of all donations to WikiLeaks, a request which DataCell refused at that point, stating that “there is no jurisdiction ground to do so.”

The next day, DataCell announced that they had received a suspension notice from their payment processor Teller A/S (a Danish company licensed to process credit card transactions), stating that they would suspend all future credit card transactions to DataCell “in order to protect the Visa brand name; and to make sure neither [Teller] nor Visa Europe is doing illegitimate transactions to fund the WikiLeaks website,” making the same statements for MasterCard transactions as well.  The suspension, initially set for one week with the possibility of extension, has now gone on for over seven months, affecting WikiLeaks’ finances and DataCell’s operations as an international data center and hosting operator.

In a statement to Dagens it, DataCell founder Olafur Sigurvinsson said that the donations to WikiLeaks from the day of 7 December alone would have amounted to €130,000.  

Following an internal review, Teller initially found on 20 December that DataCell was not authorized to transmit donations to a third party, but considered this a minor detail, clarifying on 30 December that it would be prepared to make payments directly to The Sunshine Press (WikiLeaks’ media branch) and to DataCell upon signing new contracts and upon getting the go-ahead from Visa Europe.

In a letter obtained by Associated Press, Teller’s chief executive Peter Wiren said

Our lawyers have now completed their work and have found no indications that Sunshine Press (…) act in contravention of Visa’s rules or Icelandic legislation.

DataCell issued a statement on 24 March 2011, saying “We believe it’s our right to conduct businesses in a legal way just like any other companies. (…) It’s not in the hands of Visa to decide what is illegal and what’s not.”  Finally, DataCell sent letters on 9 June “inform[ing] Visa, MasterCard and Teller of the intention to file a complaint to the EU Commission regarding Visa’s and MasterCard’s violation of EU Competition regulation and to initiate a law suit in Denmark to claim damages.”  No response was given to the demands made by DataCell, except that the letters had been received.

On 2 July 2011, WikiLeaks and DataCell jointly announced their intent to launch civil suits against Visa Europe and MasterCard Europe in Iceland and in Denmark, stating:

On June 9th a the law firms Bender von Haller Dragested in Denmark and Reykjavik Law Firm in Iceland acting on behalf of DataCell and WikiLeaks told the companies that if the blockade is not removed they will be litigated in Denmark and a request for prosecution will be filed with the EU Commission.

Five days later, DataCell announced that the Iceland-based payment processor Valitor had opened the gateway for payments with Visa and MasterCard and American Express, and that regular payments to DataCell and donations to WikiLeaks could be resumed.

We choose to interpret this, as that Visa and MasterCard has in fact given in to our demand that the payment services was reinstated. (…) DataCell is happy that our threats of legal action have had this effect. – DataCell statement from 7 July 2011

Visa responded immediately, stating that “We have not reinstated DataCell and are looking into how transactions are being made.”  According to Visa representative Amanda Kamin, “An acquirer briefly accepted payments on a merchant site linked to WikiLeaks. As soon as this came to our attention, action was taken with the suspension of Visa payment acceptance to the site remaining in place.”  The payment gateway was shut down the following day.

On 14 July, DataCell announced that it had filed a complaint against Visa Europe and MasterCard Europe to the European Commission, alleging violations of the European Union’s competition rules.

Press and Human Rights Groups, Regulators Speak Out

Many International organizations, such as Amnesty International, Reporters Without Borders, Article 19, and press many other groups around the world, expressed concern over what they view as a broad spectrum of financial and infrastructural attacks which amount to censorship and a violation of human rights.

On 9 December 2010, one day before the International Human Rights Day, United Nations High Commissioner for Human Rights Navanethem Pillay expressed her concerns during a conference in Geneva about reports of government pressures on Internet Service Providers and other companies to stop providing services to WikiLeaks, saying:

This is truly what media would call a cyber war; it’s astonishing what is happening. WikiLeaks’ case raises complex human rights questions about balancing freedom of information, the right of people to know, and the need to protect national security and public order and this balancing act is a difficult one.

I am concerned about the reports of pressure exerted on private companies, including banks, credit card companies and Internet service providers to close down credit lines for donations to WikiLeaks as well as to stop hosting the website or its mirror sites. While it is unclear whether these individual measures taken by private actors directly infringe on states’ human rights obligations to ensure respect of the right to freedom of expression, taken as a whole they could be interpreted as an attempt to censure the publication of information thus potentially violating WikiLeaks’ right to freedom of expression.

On December 10th 2010, the Icelandic Parliamentary General committee met to discuss Visa/MasterCard Ban on Donations to WikiLeaks and talked about the possibility to revoke Visa/MasterCard licences to operate in Iceland.  The two interested Icelandic companies, Valitor and Borgun attended the meeting as well as The Consumer’s Alliance, Amnesty International and, via conference call, WikiLeaks spokesman Kristinn Hrafnsson.

Róbert Marshall, chairman of the committee said:

People wanted to know on what legal grounds the ban was taken, but no one could answer it. They said this decision was taken by foreign sources.

In particular, the committee wanted more information from these companies on the legal grounds on which they banned cardholders from donating money to WikiLeaks.

Vidar Thorkelsson, CEO of Valitor, which operates Visa and MasterCard in Iceland, stressed that the Icelandic companies had nothing to do with the decision.  Amnesty International stated that they are very concerned about “the precedent the ban sets with regards to human rights.”

Róbert Marshall then stated that it was opinion of the committee that Visa and MasterCard licences to operate in Iceland should be reviewed.

After Visa/MasterCard stopped processing donations to WikiLeaks, DataCell started helping people to donate by bank transfer. In an interview dated 9th of December 2010 on Icenews, Olanfur V. Sigurvinsson co-founder of swiss-Icelandic DataCell, said that despite Visa/MasterCard shutdown, bank transfer donations were going very well and that donations had increased.

The credit card companies are just not a part of the transactions. There are just as many donations as before, if not more, but they are just transferred direct,” Sigurvinsson told DV. “We have assisted some 2,000 people with that just today.”

He also added that DataCell had received many emails from persons wishing to donate, who were angered by the blockade.

It is simply a human rights organisation with freedom of speech at its core and there are lots of people who have Visa cards and want to spend their money supporting exactly this issue. It is understandably irritating when some credit card company somewhere decides what you are allowed to spend your money on. Will they ban us from buying chocolate next?

On 21 December 2010, Reporters Without Borders issued a statement condemning the financial blockade by Visa Europe, MasterCard, and others:

Reporters Without Borders points out that no charges of illegal activities have so far been brought against WikiLeaks or its administrators. By anticipating the possibility of such charges, these banking entities are violating the right of the public to be able to provide WikiLeaks with financial support if they so choose.

By cutting off its sources of funding, these financial institutions could force WikiLeaks to close. If that happens, their decisions, which have no basis in any judicial ruling, would have violated the principle of freedom of expression, a principle enshrined in article 19 of the Universal Declaration of Human Rights.

On an article dating 24th of December, newsinenglish.no reported that Danish financial authorities from the regulatory agency Finanstilsynet had asked Teller about the legal basis and reasons for having effectively stopped payments to WikiLeaks by suspending DataCell ltd.

Anders Kvam, of Finanstilsynet said “we’re looking into this” and that “This is a current problem that must be solved”

DataCell’s Complaint to the European Commission

Following the opening of Visa and MasterCard payments through Valitor to DataCell on 7 July 2011, DataCell ltd. announced the following day that Valitor had closed down the gateway and terminated the contract with them, under orders from the international credit card companies.

On 8 July 2011, Reporters Without Borders responded to the new closure of donations to WikiLeaks.

Reporters Without Borders deplores that Visa and MasterCard have shut down again their online service payment for WikiLeaks. The organization denounces the economic censorship imposed on WikiLeaks.

On 14th of July 2011 WikiLeaks and DataCell ltd. filed a Complaint to the European Commission against Visa Europe, MasterCard Europe and Teller for a conduct which, according to the complainants, constitutes a violation of antitrust rules of the European Union and specifically, an infringement of article 101 paragraph 1 and article 102 of the Treaty on the Functioning of the European Union states, Title VII, Chapter I, Section I on “RULES APPLYING TO UNDERTAKINGS” as well as articles 53 and 54 of the European Economic Area Agreement.

In the coming weeks, WikiLeaks intends to launch civil litigation against Teller A/S in Denmark for breach of contract and against Visa Europe and MasterCard Europe for breaching of competition rules.

DataCell also stressed that the two credit card companies haven’t provided an objective justification for refusing to do business with them.  It had been pointed out by DataCell that none of WikiLeaks’ staff, directors, employees, or contractors have been indicted or prosecuted for the breach of any civil or criminal law provision or violation of public policy.  Similarly, the payment processor Teller A/S, asked by Visa to investigate WikiLeaks and Sunshine Press, also found “no indications that Sunshine Press … acted in contravention of Visa’s rules or Icelandic legislation.”

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