Judge confirms ex-minister as probable anonymous newspaper source

Kaspersky wins lawsuit from Telegraaf journalists

Russian security provider Kaspersky Lab sued and tried to unveil the former Dutch minister of finance Willem Vermeend, for his alleged role as the 'anonymous source' in the lawsuit against Dutch newspaper De Telegraaf. The identity of the anonymous source was surprisingly also confirmed by the judge in this curious international case.

(* Translation by Berend Watchus)

The Dutch television program Nieuwsuur (News Hour) was given a court order to rectify an airing broadcasted on January 29 2018, with the up until that moment completely unknown self proclaimed cyber security expert Rian van Rijbroek. During the aftermath of that controversial airing, factually incorrect content and plagiarism was found in ‘Cybersecurity en Cybercrime’,  a book written by Rian van Rijbroek and Willem Vermeend. Publisher Einstein Books then took the book off the shelves.

This was reason enough for journalists Bart Mos and Joris Polman to want to do an in depth interview with Van Rijbroek for their weekend newspaper, published on the 3rd of February. Only the first part of this article remains online, in the 'The best of De Telegraaf' section, titled: 'Master spy or seducer? Welcome to the intriguing world of hacker Rian van Rijbroek'. In Amsterdam on July 16 2018, De Telegraaf was given a court order by the preliminary relief judge, Ms. M.W. van der Veen LLM, forcing the newspaper to publish a rectification and forcing them to add this to the original online article.

The alleged hack of Kaspersky Lab

De Telegraaf wrote that Van Rijbroek claimed that she had hacked (via wifi) the Dutch office of Kaspersky Lab. The Russian security firm investigated the case and sued De Telegraaf in an interlocutory (fast-track) procedure.

This resulted in a tough verdict against De Telegraaf journalists Mos and Polman, which can be summarized as: too much hurry, sloppy work and the urge to score and especially the toxic combination of these three stacked up together. Valuable lessons learned but also recognizable flaws and urges very familiar to every journalist. The rectification:

Rectifying Kaspersky Lab's reputation

De Telegraaf's Saturday paper of the 3rd of February 2018 contained an article in which the newspaper reported on their interview with Rian van Rijbroek. The article states that Van Rijbroek told the newspaper about the fact that on Christmas Eve in 2017 she had hacked a 'world renowned Russian software security firm' with headquarters in Moscow. Even though the name of this company is not explicitly mentioned in the article, it is obvious and without a doubt that the article talks specifically about Van Rijbroek having hacked the Kaspersky Lab office in Utrecht.

In Kaspersky Lab's interlocutory procedure, brought before the Amsterdam District Court, newspaper De Telegraaf could not back up their claim with facts to make it plausible enough that Van Rijbroek said that she had hacked Kaspersky Lab.

Van Rijbroek denies her alleged hack of Kaspersky Lab and also denies that she told De Telegraaf about this supposed confession.

The Amsterdam District Court has declared the publication unlawful and sentenced De Telegraaf to publish this rectification.”

'Member of parliament with Russian ties'

In order to prevent such a brand damaging rectification on the frontpage of the paper and on the website, De Telegraaf had already offered to publish a new article, to correct the previous article.

However, reason to review and take a closer look at the decision of the Amsterdam District Court is the fact that Kaspersky also took former minister Willem Vermeend to court in this Telegraaf-case. Vermeend allegedly had been the anonymous source of De Telegraaf, exposing the supposed successful hacking of Kaspersky's office, allegedly performed by Van Rijbroek.

Vice versa, Vermeend filed a claim in reconvention against Kaspersky. Reason is the fact that founder and CEO Eugene Kaspersky published an article on Kaspersky's website, in which he accuses Vermeend of spreading false information in the De Telegraaf article. The ex-minister of Finance did not appear in court, but he did send lawyer Christiaan Alberdingk Thijm on his behalf.

This is how the events probably took place: to begin with, because of controversial statements, nonsensical speeches and the publication of questionable, low quality content books, Vermeend's reputation wasn't that great for an ex-minister.

He then sees his co-author Van Rijbroek fail in the television airing of News Hour and simultaneously sees his own reputation crashing in a downward spiral, beyond a critical level. Vermeend advises Van Rijbroek via a telephone call to open her front door for journalist Bart Mos. Vermeend  calls the interview 'an opportunity to clear her name and reputation' after being 'butchered', because of the News Hour airing.

At Van Rijbroek's kitchen table, Mos has a peculiar conversation with the alleged hacker. Van Rijbroek calls all kinds of security experts and lets Mos talk to them. According to the De Telegraaf article, 'every single one of these confirm that she is an elite hacker'. Identifying and confirming these sources is impossible over the phone. However, Willem Vermeend is the other day in fact mentioned in the Telegraaf-article as a confirming source, to back up her reputation as an elite hacker.

After arriving back at the De Telegraaf editor's office, Mos hears from his colleague Polman that an anonymous source claims that Van Rijbroek had hacked the Kaspersky Lab office in The Netherlands. Breaking into Kaspersky's computers systems supposedly took place as a part of an investigation in order to find confirming evidence of alleged ties between Russians and Dutch populist Member of Parliament Thierry Baudet. Friday night was going to be a close call. Van Rijbroek still had to confirm the article, while the deadline before printing the weekend paper was getting closer and closer.

Van Rijbroek denies the suggestion that she had broken into Kaspersky's computer systems. Mos and Polman increased the pressure and eventually Van Rijbroek -sort of- admitted to hacking Kaspersky, according to Mos and Polman. However, there is no audio evidence of the confession of the hack, because Mos and Polman happened to forget to record the call, again, according to Mos and Polman.

'Successful rehabilitation'

Vermeend thinks the article in the newspaper resulted in a successful rehabilitation of Van Rijbroek's reputation, that's what he tells her after the publication of the De Telegraaf article: '... First they wanted to completely ruin you, completely. If you've seen what they have written about you, it's horrific. After that, they did think we've got to write something and in their opinion they helped you out to a certain extent. At least they did not portray you as an idiot...'

So it appears from the two telephone conversations with Vermeend, which Van Rijbroek recorded a few days after the publication and later delivered as evidence in court. She also delivered the Whatsapp conversations with journalist Mos as evidence, which might lead to the conclusion that she is not the original source of the Kaspersky hack story.

In Moscow on June 12, Founder and CEO Eugene Kaspersky personally published the article 'Dutch hacker, big cyber-politics, and the anatomy of ‘real’ fake news' in an attempt to frame the De Telegraaf article as a part of a hostile worldwide wave of negative publicity, aimed at politically harming Kaspersky. The Dutch judge declared this claim to be completely unproven.

With regard to Vermeend and Kaspersky's lawsuits, judge Van der Veen rejected both claims on the same basis: she can’t irrefutably determine that Vermeend was in fact the anonymous source of the Kaspersky hack story, however she can to a degree with some reservations. After all she does announce a striking verdict: 

Even though convincing evidence is lacking, because neither the journalists nor Vermeend are willing to confirm, there are however two indications that point to Vermeend as the one who has acted as the 'anonymous' source.

The preliminary relief judge has distilled these two clues from the Whatsapp messages and telephone conversations between Van Rijbroek and Vermeend, '... from which can be concluded that Vermeend does admit that there has been direct contact between him self and the De Telegraaf journalists.'

The judge concludes the following on the De Telegraaf source: 'The finding of these clues result in the fact that we currently can not dismiss the accusations towards Vermeend, because of a lack of factual evidence nor can it be stated that the accusations are unjust.'

Emphasis is added because this is an unprecedented event: a judge who identifies and deanonymizes an anonymous source, while journalists simultaneously have the obligation to protect the anonymity of this same source. On top of that, after unveiling the anonymous source, the judge still refrains from announcing a definitive verdict.

According to Vermeend's lawyer Christiaan Alberdingk Thijm, Mos would not ever betray an anonymous source, given his reputation: in 2006 he himself was even in captivity (taken hostage by the State) in 2006 when he together with his colleague Joost de Haas wanted to protect a source.

However, Mos did in fact mention his source in a Whatsapp conversation,  this was necessary to get a confirmation from Van Rijbroek. She delivered this message from Mos in court.

Mos typed the following sentence: 'You told us that Willem Vermeend knew about the investigation of Baudet and Kaspersky, because by accident he happened to stumble upon some documents in your house, documents that were related to your investigation.'

A precedent: the unveiling of anonymous sources?

Alberdingk Thijm thinks the subpoenaing of alleged anonymous sources is, both from a journalism standpoint and from a legal perspective, a very undesirable development. This undermines the basic confidentiality of sources. Colleague media lawyer Jens van den Brink thinks subpoenaing of sources is 'a bad idea', regardless of this case.

As an example he mentions the case of the source of the NRC newspaper article and the RTV Rijnmond regional airing, in which the source leaked information about an alleged situation in which many children were unofficially housed in mosques in The Netherlands. In this case the source got fired from his job and later, in 2014, he filed a lawsuit against this decision. The preliminary judge then reversed the firing from his job and supported this decision in the following way: 'Although the applicant could have been more nuanced with his choice of words in the media, it is the preliminary judge's judgment that providing confidential information to the newspaper NRC Handelsblad and participating in a television airing of RTV Rijnmond are activities that need to be protected.'

Van den Brink: 'The right of the confidentiality of sources also protects the sources.' In other words: not only journalists, but also the source itself can appeal to the right of confidentiality of sources. Wouter Hins, associate professor of Media Law in Leiden, has another take on this case: 'This civil servant admitted during the hearing that he had leaked and even before that there were clear indications that he was the source. I view the verdict in this case rather as the protection of a whistle blower, and not from the context of journalism, in which an anonymous source might have been protected.'

Hins points to a Supreme Court ruling that confirmed the punishment of an *AIVD source of newspaper De Telegraaf, which was based on wiretapped phone calls that were declared unlawful by the Court of Justice (of the European Union). 'So the AIVD employee and originally anonymous source was punished based on illegally obtained evidence. Even in this case the source was not given immunity.' (*AIVD= the General Intelligence and Security Service of the Netherlands)

Can the judge pass a verdict on an anonymous source? Hins: 'If in this case Kaspersky only suid Vermeend, the judge probably had better maintained the anonymity of the source instead of confirming the identity. However, Vermeend filed a counterclaim in reconvention and took Kaspersky to court, for defamation by Kaspersky. In a situation like this the judge feels the urge to identify the source if there are any clues pointing in that direction.'

Isn't there a danger of fishing expeditions in court, poking at the anonymous source in attempts to unveil the identity- when injured parties start suing alleged anonymous sources? Courts should actually refrain from facilitating this process, this is what professor Hins concludes from a 2013 case involving the newspaper De Limburger. The Supreme Court then ruled that it was the right decision by the magistrate to have obstructed the unveiling of an anonymous source of newspaper De Limburger, during a witness hearing.

Hins: 'With this judgment in mind, I would say that the judge is obligated to put effort into maintaining the anonymity of sources. A fishing expedition aimed at revealing the identity of a source should be prevented.'

A more cautious approach?

In what way can journalists take into consideration that anonymous sources might lose their anonymity because of court cases? Joop Bouma, an experienced investigative journalist of newspaper Trouw: 'You can't avoid this from happening, this also counts for when third parties are aware the identity. It is sensible for journalists to ask their anonymous source to remain silent on the matter in their own direct personal environment. However, this is not always achievable. As a journalist the only thing you can do is to guarantee that you will never reveal the identity, not even when third parties do reveal the identity.'

Bouma thinks you have to take extreme measures, even lie when necessary: 'I once even told blatant a lie to a senior official who thought he was sure about who in his ministry was my source of a leaked document. But, the evidence against the source was pretty solid. This issue still bothers me today...'

*) photo: Rian van Rijbroek in another role: as a model in Dubai, according to Van Rijbroek her cover story a for a secret operation (source: YouTube)



9 okt 2018
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