(on 2011-09-22)

Julian Assange: Statement on the Unauthorised, Secret Publishing of the Julian Assange “autobiography” by Canongate

Julian Assange Press Statement on the Unauthorised "Autobiography": Thursday 22nd September 2011, 0100
Update; 27 September 2011, 1900 - New Primary Sources at Bottom

I have learned today through an article in The Independent that my publisher, Canongate, has secretly distributed an unauthorised 70,000 word first draft of what was going to be my autobiography. According to The Independent, Canongate “enacted a huge security operation to secretly ship books out to thousands of stores nationwide without tipping anyone off as to the content of the book”. It will be in the bookshops tomorrow.

I am not “the writer” of this book. I own the copyright of the manuscript, which was written by Andrew O'Hagan. By publishing this draft against my wishes Canongate has acted in breach of contract, in breach of confidence, in breach of my creative rights and in breach of personal assurances. The US publisher, Knopf, withdrew from the deal when it learned of Canongate’s intentions to publish without my consent. This book was meant to be about my life’s struggle for justice through access to knowledge. It has turned into something else. The events surrounding its unauthorised publication by Canongate are not about freedom of information — they are about old-fashioned opportunism and duplicity—screwing people over to make a buck.

On 20 December 2010, three days after being released from prison and while under house arrest, I signed a contract with Canongate and US publisher Knopf. In it I agreed to authorise a 100,000-150,000 word book - part memoir, part manifesto - in order to fund legal defences and to contribute towards WikiLeaks' operating costs. On the 7th of December 2010 Bank of America, Visa, MasterCard, PayPal, and Western Union folded to US pressure by arbitrarily and unlawfully cutting WikiLeaks off of its financial lifeline. The blockade continues. The European Commission is due to issue its first findings in October. My legal defence fund was similarly targeted and closed.

The draft is published under the title "Julian Assange: The Unauthorised Autobiography" - a contradiction in terms. It is a narrative and literary interpretation of a conversation between the writer and me. Although I admire Mr. O'Hagan's writing, this draft was a work in progress. It is entirely uncorrected or fact-checked by me. The entire book was to be heavily modified, extended and revised, in particular, to take into account the privacy of the individuals mentioned in the book. I have a close friendship with Andrew O'Hagan and he stands by me.

The publisher has not been given a copy of the manuscript by Andrew O’Hagan or me. Rather, as a courtesy they were shown the “manuscript in progress” by Andrew O’Hagan’s researcher, as an act of generosity, and for viewing purposes only – expressly agreed to by Canongate. Canongate physically took the manuscript, kept it, and did not return it to Mr. O’Hagan or me.

Contrary to what The Independent reports, I did not pull the plug on the deal, nor was I unwilling to compromise. Rather, I proposed on 7 June 2011 to cancel the contract as it stood in order to write up a fresh contract with a new deadline. I informed the publishers of this on 7 June 2011, having explained that with the upcoming extradition appeal in the High Court and an ongoing espionage Grand Jury against me in Virginia, I was not in a position to dedicate my full attention to a book that would narrate my personal story and my life's work. On 9 June 2011 I received an email from my agency, PFD, informing me that the US and UK publishers (Knopf and Canongate) were interested in renegotiating the form of the book, and insisting on canceling the contract as it stood: "The primary publishers [Canongate and Knopf] very much like this idea [of changing the book agreed to in the contract into documentary form] and understand that we cannot address this until after 12 July [the first day of the extradition appeal]... Both Jamie [Byng] and Sonny [Mehta, from US publisher Knopf] (who is here at the moment) insisted on cancelling the existing contract." It is this contract, that had been agreed to be cancelled by all parties, that Canongate is basing its actions on.

The initial advance my agent refers to was the first of what should have been three instalments. The advance was paid direct into my former solicitors' (FSI) bank account wholly without my consent. The money sits unspent in an FSI client account. FSI has refused to release the money to Canongate as a result of a legal fees dispute (FSI initially agreed to handle my extradition case “pro-bono”, or without fee). The FSI fees have been audited by an independent costs draftsman. The audit shows extreme over-charging. The outcome of this dispute is pending, but a favourable finding would release the entire advance, which has not been touched, back to Canongate and Knopf.

In a meeting on 20 May 2011 with Canongate publisher Jamie Byng, I verbally agreed to deliver the agreed 100,000-150,000 word manuscript by the end of the year. In a recorded phone conversation on (or the day before or after) 15 June 2011, Jamie Byng gave me assurances that Canongate would never, contrary to rumours given to me, publish the book without my consent. We would agree to restructure the book and the deadline, and draw up a new contract. In correspondence (24 August 2011) my agent wrote: "We are going to arrange for you to have a one-to-one meeting with Jamie [Byng]... I think we could aim for a Spring 2012 publication and work a timetable that gets us there, but that's between Jamie and you.... we can discuss a new payment schedule but they will need considerable assurances that the book will be delivered to them to publish." However, Jamie Byng ignored my agent's attempts to arrange a meeting with me. My agent then informed me that Jamie Byng would refuse to take any of my calls. Despite this I and two members of my team tried repeatedly to contact him through calls, messages on his voicemail, and text messages leading up to and on 5 September 2011. He did not reply to any of our attempts to contact him. During all this time we were unaware of Canongate’s secret plan to publish the manuscript without consent.

Two days later, Canongate informed my agent that they wanted to print the unauthorised book Monday, 19 September 2011. I was advised by my lawyers that I had grounds for obtaining a quia timet injunction to prevent the printing on 19 September of the manuscript. I was informed that I could object to Canongate's actions on the basis that the proposal amounts to an infringement of copyright, a breach of the agreement, plus a breach of my right not to have my work subjected to derogatory treatment.

On 16 September 2011, I wrote a letter to my publisher informing them of my intention to obtain a temporary injunction unless they agreed to make immediately available to Q.C. Geoffrey Robertson a copy of the proposed book. In keeping with my rights under the contract, I requested five days for legal review of the manuscript by my own barrister, so that he could suggest any deletions reasonably required to protect our people from any adverse legal consequences that may arise from this publication. Jamie Byng attempted to extort legal immunity for his actions by refusing to giving me even a single chapter of the book unless I signed away my right to take legal action against Canongate. In his reply to my agent (16 September 2011), he wrote: "And we do need written assurances from Julian that he will not be taking legal action against the book before we can give our lawyers the green light to send over this chapter".

Canongate has stated that I have not acted on obtaining an injunction in the twelve-day window between the date of the letter informing me of the publication and the date that the book would go to press. This alleged twelve day window was in fact a five-day window, as I was only given the letter on Friday 9 September at 16:00. From the moment I was informed of Canongate's actions, I spoke to numerous solicitors. These solicitors were unwilling to take my case because I as the claimant must give a cross undertaking for damages when applying for an injunction. This means that I would be required to demonstrate that I was in the financial position to undertake to pay damages to Canongate in the event that the injunction should not have been granted. I am not in a position to provide such an undertaking. Canongate is aware of this. In a letter dated 14 September 2011, Canongate's lawyers write: "Please also note that if the Book is not published our client will incur very significant additional damage. As you will be aware the court will take this into account when considering any application for an injunction to satisfy itself that the cross-undertaking as to damages that Mr. Assange will need to provide is good in this respect. Furthermore, we understand that Mr. Assange is an Australian citizen and not resident in this country. If that is right he will need to provide security for costs."

Canongate is profiteering from an unfinished and erroneous draft, preventing me from exercising my rights as the copyright holder, denying me and many others of market opportunity for the book I wished to publish, and depriving me of the earnings I would eventually have made with the second and third instalments of the advance. It is acting on a contract that both parties agreed to terminate, but is, in any event, in breach even of that contract. My agent was negotiating a new timetable and we had agreed to draw up a fresh contract for the book I wanted to publish in my name. The last conversation with Jamie Byng on 16 June was friendly, positive and forward-looking. Since then, as Canongate secretly prepared the manuscript for publication, it has found excuses not to interact with me, presumably in order to avoid discovery. Canongate has refused contrary to contract to provide me with a copy of the edit that has gone to print for my lawyers to assess. Canongate has carried out this action with the knowledge that my financial situation prevents me from undertaking legal action against them. Canongate’s actions undermine the economic benefit I and WikiLeaks could have derived from the book deal at a time when my legal costs are mounting due to politically motivated legal attacks and a financial blockade jeopardises WikiLeaks' continued operations.

My ability to comment on the content of the book is limited. I am aware that there have been edits to the draft of 31 March 2011, but I do not know what they are. Andrew O’Hagan has not been shown the final edit. Tomorrow, I will have to buy ‘my autobiography’ in order to learn the extent of the errors and inaccuracies of the content of the book, but the damage is done.

Transcript from a phone call between Julian Assange and Jamie Byng of Canongate on 8th June 2011. In it they discuss Julian’s time difficulties and decide on a new kind of book that they will publish instead of the one originally envisaged. Jamie is very happy about this new book

Julian: I’ll be completely straight with you, I am being buried: the Grand Jury, FSI money issues and we have people missing. At least until the Swedish case ends that is how my life is – full of constant struggles and interventions. I can’t not respond to these things that put me and the organisation in jeopardy.

Jamie: I am not suggesting you don’t deal with things that need handling.

Julian: The book is very important, but it is not urgent. And there are things that are urgent and important.

Jamie: I hear you. But it is a question of where we go from here. We need to almost certainly cancel the contract of the book as is. It seems you don’t want to write that book and you don’t want it to be published. And you can’t find time to find a way for it to be published as is.

Julian: It is important to me. If it wasn’t I’d just say lets do an instant book and stick it out there and it’ll answer a couple of the smears. But I know the first one is going to be very important and impactful. The first one has to be impactful or the second one won’t be. I’ll ruin a tremendous opportunity and I don’t want to do that.

Jamie: Maybe there’s a book of third person narrative written by Andy that you’re removed from but intimately involved in. That to me is the only realistic way we’ll get a book that you’re happy with and we’re happy with. We can’t pretend that we put this thing back 12 months. There are bigger issues with some of the publishers abroad who won’t want to publish the book in 2012. But I don’t care about that on one level as long as I think we’re going to publish a great book and I believe we can find great publishers (even if different) for this different kind of book than the one we had originally contracted. But in order to do that we’ll need to sit with Andy – he’s keen.

Julian: I know he’s keen, but he’s not keen for a deadline.

Jamie: I know and I think that’s sensible. I’m really with you on this. We have to cancel the contract as it is because it doesn’t seem it’ll be a memoir.

Julian: The publishing industry seems to be straightjacketed on what a memoir is.

Jamie: We’ve got to be careful it doesn’t get out that the book’s been cancelled. I would like it to be between us that we’ve cancelled this agreement, if we can work out a new agreement simultaneously and a new payment structure.

Julian: There’s a question as to how much time this book will take and when it needs to be done by.

Jamie: If it moves into 2012 then so be it. I think we’ve lost a great moment and opportunity but that is by the by. What we’ve got to do is be realistic about your time and what will result in the best possible book. I think it will be a book that will have more enduring qualities if it is something different from what we’d originally conceived and if it includes these critical moments from 2011. I don’t know what the other publishers will think. But I don’t want to do anything in a hurry. I’ve accepted we’re not going to publish a book this year. Getting upset, het up, whatever, will achieve zero. This will be an even better book because we give ourselves more time. Hopefully we can hold together this great team of publishers from around the world and just recognise that it’s going to be a different book from the one we’d originally envisaged. Let’s continue this conversation. I am very much accepting we’ve got to work out a way forward that recognises this isn’t going to happen this year. It’s a shame on one level but I think the result could be one we look back on in years to come and realise it was the right decision and this is an exceptional book. An authorised inside account of WikiLeaks by Andy O’Hagan and assisted by Julian Assange.

Julian: It should have some biographical elements and some philosophy. Be show more than tell, bourne out by the life we’re living through.

Jamie: Yes, Andy will feel liberated. I have told Nick, Polly and Jenny about this. Jenny’s eyes lit up. We think this could be a better book and a great book. There is real enthusiasm here.

Transcript from a phone Conversation from Julian Assange to Jamie Byng of Canongate on 16th June 2011. In the call they discuss the return of the advance and the revised book deal on a different book. Jamie states he would not publish Julian’s unauthorised manuscript

Julian: I hear some noises about people looking to publish unauthorised copies of my manuscript.

Jamie: No. That is absolutely not what we are going to do or want to do. The position I am in, as we discussed last Friday, is the absolute best thing for us and you is that we work with Andy on a book which is a third person account.

Julian: I’ve had a good experience with you and I like you and trust you and so on. Circumstances have been difficult for both of us as you know. There are many things we could make . I am a gentleman and would make them with you. But if I saw any moves towards publishing a manuscript that should never have been in your hands in the first place. I would consider that a hostile act. Even a move to look in that direction I would consider a hostile act and then all cards are off the table.

Jamie: Julian, do not worry. My absolute number one desire is to publish a great book that you are happy with. It is going to be different to the one we contracted for the reasons we discussed.

Julian: Yes, and we will discuss that after the hearing.

Jamie: I’m in exactly the same position. That’s the book I think we can get most publishers around the world to also publish and keep this coalition together.

Julian: I completely understand and am sympathetic with your position running a not to big publisher and you have budgets to balance and reputation to manage and so on. I’m extremely sympathetic to all that and will do whatever is in my power in the coming year to make good on our deal but I can’t have subterfuge or publishing unauthorised manuscripts under any circumstances at all. Not even under an emergency circumstance. Only if I died would I accept that.

Jamie: With my Canongate hat on I thought we were going to cancel the deal, get the money and work out a new contract. But it looks like we’re not going to get a penny back in the short term, which I can just about handle.

Julian: I did warn you that you needed to carefully construct the letter.

Jamie: It is clear from talking to Caroline that there is no letter in the world that would get that money back. We can’t get that money back as FSI say they have a claim on it.

Julian: The way they have reacted, by pulling out on letting Jen work on the case in the deal we had constructed, makes me think they’re not sure they do have first claim on the money.

Jamie: This would all be academic if we had a book to go to the other publishers with.

Julian: It may be academic for you, but its not for me. They still have my money. They’ve already been paid £250,000 and there is £150,000 in the Defence Fund. Now we’re arguing about how much of the bill is bona fide. You might get half of it back or something.

Jamie: I was always committed to doing a book with you and paying advance on earnings. The trouble is right now we don’t know what the earnings are going to be. There are certainly not going to be earnings from abroad until we cancel this deal and go back to them with a new deal that’s really credible. And we shouldn’t even tell them about this new book until it is actually written. We should keep it all under wraps until it’s actually published and not have simultaneous publication. What I want Andy to do with you and I is to work out what is this book and when can it be published, when do we think collectively would be the best time to publish.

Julian: What is Stephen’s saying about the situation.

Jamie: I have not spoken to him. Caroline has and he made it very clear to Caroline they won’t return the money until the bill is sorted. I don’t know what timescale that’s done on: weeks, months or days. My desire, the only way forward I see is to come up with a book that is along the lines we discussed. We shouldn’t push this through too fast. We need a little bit of time to kind of let this settle in that we’re not doing a memoir and to communicate that to publishers.

Julian: I agree. From my perspective I have the US Grand Jury sitting now. Tomorrow morning is the six months of my house arrest and there’ll be more going out about that.

Jamie: So, right now, lets not do anything. What I want Andy to do in the next week or so is come up with a proposal and that we can all look at: you, Sonny and I and we can all agree we would sign off on. When we sign off on it….? Lets wait ‘til we see it first. Sonny is over in early July. I don’t want to overload you, but we could come up.

Julian: Early July is rather difficult for me.

Jamie: Do not worry. Andy should lie out his vision for this book and we can all look. It could result in a great book and do all the things you wanted this book to do, perhaps more as it is objective. I think all our instincts that this is the book to publish are right and lets not try to do anything this week or next week on that. I will talk to Andy about starting this work up. In the meantime I am going to have to accept we’re not going to see any money back. But I am still going to have to cancel the contract with the publishers abroad as I am misleading them and I won’t do that.

Julian: Tomorrow night might be a good time to do that due to the Grand Jury and house arrest video as then it shows the whole world is crashing down on Julian.

Jamie: What I propose we do is get a draft press release to you.

On the 10th of July Jamie Byng of Canongate sent a 'friendly' SMS to Julian Assange apologising for being unable to attend his birthday party but suggesting they meet:

Dear Jo,
As I feared, getting to Ellingham for Julian’s 40th simply isn’t going to be possible. Complications with my three kids and an unwell mother. But I am in London on Monday and Tuesday. Would love to see Julian even very briefly.
Send him my best. It looks like it is going to be a lovely day.

Email between Julian Assange’s assistant Joseph Farrell and Julian’s agent Caroline Michel after a meeting with Julian Assange on 23rd August

On 24 August 2011 16:40, Caroline Michel wrote:

Dear Joseph,
So good to see you yesterday – you look very well. Sorry to rush off without saying goodbye.
I need to fix a meeting between Julian and Jamie some time in early September. Could we look at some dates? Meanwhile could you pass this note onto Julian?

Dear Julian
So good to see you yesterday. In spite of all the pressures, you look very well. 
Just a note on what we talked about:
1)       You are going to look at a timetable to deliver the book
2)       We are going to arrange for you to have a one-to-one meeting with Jamie (I am going to liaise with Joseph and Jamie about dates) and you are going to call Andy (remember if you need an editor to sit with you to do the nitty gritty structuring and editing, I mentioned my colleague Tim Binding. I am not suggesting he writes anything only that he works with you. He is an expert in this as well as being a novelist).

I have sent Jamie a note to say you are going to meet with him and a text to Andy saying you are going to call him.

I cannot see a downside in delivering a book with your message and your story. It was fascinating sitting and listening to you yesterday talking about your story. You have so much to tell and there is an international publishing network ready to take your book and your message and create a platform and a profile with this book that is not corrupted by other people’s opinions and views. I think if we could aim for a Spring 2012 publication and work a timetable that gets us there, but that’s between Jamie and you. Financially was we discussed once Jamie and Sonny know the book is back on track we can discuss a new payment schedule but they will need considerable assurances that the book will be delivered to them to publish.

I will try and find a tax financier for you to talk to who is cognizant of all the concerns around you before any more money is delivered.

I will talk to MK’s lawyers tomorrow re: the documents we discussed and come back to you. 

OTHER BOOKS: Wikileaks cook books and international editions of Cablegate – I would love to get these going Julian but we need to reassure the publishers we are on track with the other book first.

Yours ever,

On the 12th of September after consultation with Julian Assange, his agent’s lawyers (Herbert Smith) sent the following letter to Jamie Byng of Canongate:

Dear Sirs

Julian Assange

We refer to your letter to Mr Assange dated 7 September 2011 (copied to our client PFD) regarding your proposed publication of an autobiography by Mr Assange pursuant to an agreement between you and Mr Assange dated 20 December 2010 (the “Agreement”).

We understand that it is your intention to publish Mr Assange’s autobiography this month and the book will be going to press on the 19 September 2011. We further understand that the intention is to publish this work based on a draft manuscript that was prepared by Mr Assange’s collaborator, Mr O’Hagan earlier this year that the publication will be billed as ‘Julian Assange: The Unauthorised Autobiography’.

Mr Assange is the owner of the copy right in the draft manuscript, whether it was written by him or his collaborator. As copyright owner, Mr Assange has the exclusive right to copy the work or issue copies of the work to the public (section 16 Copyright, Designs and Patents Act 1988 (the “Act”). It is an infringement to copy the work or issue copies to public (section 17 and 18 of the Act).

Whilst, the Agreement gives you a right to publish the “said work” within the meaning of the Agreement, the draft manuscript does not fall within the definition of “said work”. The draft manuscript is clearly not “complete”, nor the required length (as set out in the Agreement), nor has it been delivered by Mr Assange as being the finally revised copy of the “said work” in accordance with Addendum B of the Agreement.

You do not have the right to publish an incomplete manuscript, which is not approved by Mr Assange (see clause 23 of the Agreement). As such, the publication of the draft manuscript would amount to an infringement of copyright and a breach of the Agreement, plus a breach of Mr Assange’s moral right not to have his work subjected to derogatory.

Our client (and Mr Assange) are aware of their legal rights to prevent you from publishing the draft manuscript (by seeking injunctive relief) and the possible damages and/or account of profits that they could seek to recover from you for infringement of Mr Assange’s copyright. However, in order to avoid costly and protracted litigation, our client (and Mr Assange) will be prepared to work with you to finalise the production of Mr Assange’s autobiography on the following conditions:

(a) the autobiography provides an accurate representation of factual material and does not prejudice Mr Assange’s legal position or the legal position of any other person. Mr Assange has, under the Agreement, provided certain warranties in Addendum C to ensure, inter alia, that all statement in the work purporting to be facts are true and that Mr Assange does not know and could not be reasonably expected to know, of any facts or matters which is or are otherwise likely to give rise to liability in libel. Mr Assange has to be afforded a proper opportunity to edit the draft manuscript to ensure that the material is factually accurate;

(b) that the autobiography promotes, and does not compromise, Mr Assange’s and WikiLeaks’ political objectives. Mr Assange is therefore entitled, as required by clause 23 of the Agreement, to approve final edited manuscript to ensure such promotion takes place;

(c) that the publication of the autobiography and the above approvals take place within a reasonable time frame (to be agreed between you and Mr Assange), taking into account the realities of Mr Assange’s work commitments and the political context in which Mr Assange operates;

(d) that you agree to pay Mr Assange, in accordance with the Agreement, the remaining amounts of £225,000 on delivery of the complete manuscript and £175,000 on first UK publication and that you assist Mr Assange with recovering monies already advanced which are currently being held by Finers Stephens Innocent.

On the basis that you are prepared to agree to the above conditions, Mr Assange will ensure that the publication of his autobiography will be supported by the WikiLeaks worldwide network, rather than be publicly opposed to, as would be the case if publication takes place in the form you currently propose.

We would request a response to the above proposal by 5pm 13 September 2011.

If you are prepared to agree to the above proposal, we suggest that we arrange a meeting whereby the reasonable timetable for the steps required for the publication of Mr Assange’s autobiography can be agreed.

Whilst our client (and Mr Assange) would hope that they can reach agreement with you to resolve this matter, failing such agreement, our client (and Mr Assange) rights are fully reserved.

We look forward to hearing from you.

Yours faithfully,

Julian’s agent, Caroline Michel, responded to Canongate’s press statement on 21st September 2011

From: Caroline Michel
Sent: 21 September 2011 16:18
To: Jamie Byng, Nick Davies
Subject: Julian Assange
Dear Jamie and Nick,
Your actions today releasing the manuscript to The Independent with a story which is factually untrue are designed to create the maximum confrontation.  It surely has to be counter productive to go to war with Julian in this way. You decided on your course.  There has been no ''bitter and acrimonious row''  Julian at all times has been courteous.  You are feeding the media myth and it is not worthy of comment. 
Julian has never attempted to injunct, , he tried to cancel not suppress, you never took delivery of the foreign sales money.  Julian wanted to speak to you about finishing the book, no denying late in the day but his circumstances are extraordinary ...you would not take his call....and he would not write the note you wanted.
You have taken this course against the author's wishes.  It does you no credit to malign him in the process when you have always held him to be one of the most important figures of a generation which is why you embarked on this project in the first place.
Yours ,

Canongate responded the same day:

From: Nick Davies
Date: 21 September 2011 14:27:42 GMT-04:00
To: Caroline Michel Jamie Byng
Subject: RE: Julian Assange

Dear Caroline

Thanks for your email.

We didn’t have copy-approval on the Independent’s news story this afternoon. We agree that there were a number of factual inaccuracies in the piece and we have been in touch with the Independent to ensure that they will be corrected for tomorrow’s print edition (and online too). The phrase ''bitter and acrimonious row'' is the Independent’s, not ours. That is not our interpretation of events and there is nothing in our The Note from the Publisher that could ever be read as such.

And for your information, here is the News Release which went out this afternoon.

Best wishes

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