AS TO THE ADMISSIBILITY OF
Application No. 13490/88
by G.S.
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 October 1987
by G.S. against the United Kingdom and registered on 6 January 1988
under file No. 13490/88;
Having regard to:
- reports provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 7 October 1988 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government
on 27 January 1989 and the observations in reply submitted
by the applicant on 26 April 1989;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom, born in 1938
and resident in Stoke-on-Trent. He is a Member of the European
Parliament by profession.
The facts, as submitted by the parties, may be summarised as
follows:
A former member of the British Secret Services, Mr. Peter
Wright, wrote a book called "Spycatcher" in which he disclosed some of
the internal workings of the Secret Services based on classified and
sensitive information to which he had access during his employment.
His intention was to publish the book in Australia but the Attorney
General of the United Kingdom brought proceedings in Australia to
prevent publication of the book. Various British newspapers,
including the Observer, Guardian and Sunday Times, sought to inform
their readers about the book and the Australian court proceedings.
However, the Attorney General obtained injunctive relief to restrain
such publication. These interlocutory proceedings terminated with a
decision of the House of Lords on 30 July 1987, the reasons being
delivered in judgment on 13 August 1987. The House of Lords granted
temporary injunctions pending trial of the substantive issues in the
United Kingdom, which injunctions prohibited British newspapers from
"1. disclosing or publishing or causing or permitting to
be disclosed or published to any person any information
obtained by Peter Maurice Wright in his capacity as a
member of the British Security Service and which they know,
or have reasonable grounds to believe, to have come or been
obtained, whether directly or indirectly, from the said
Peter Maurice Wright;
2. attributing in any disclosure or publication made by
them to any person any information concerning the British
Security Service to the said Peter Maurice Wright whether
by name or otherwise."
The injunctions also contained the following provisos:
"1. this Order shall not prohibit direct quotation of
attributions to Peter Maurice Wright already made by
Mr. Chapman Pincher in published works, or in a television
programme or programmes broadcast by Granada Television;
2. no breach of this Order shall be constituted by the
disclosure or publication of any judgment given in open
court in the New South Wales action No. 4382 of 1985;
3. no breach of this Order shall be constituted by a
fair and accurate report of proceedings in
(a) either House of Parliament in the United Kingdom
whose publication is permitted by that House; or
(b) a court in the United Kingdom sitting in public."
Before the Commission the applicant objected to the second
proviso which amended earlier temporary injunctions allowing the
reporting of information disclosed in open court in the Australian
proceedings unless its disclosure was prohibited there. The intention
of the House of Lords in limiting the reporting of the Australian
proceedings was to ensure that the interlocutory injunctions were not
circumvented by the publication of any extracts from "Spycatcher"
which might have been read out in open court in Australia on the
pretext of reporting legal proceedings.
There was in fact extensive reporting of the remaining
Australian proceedings in the British press. These proceedings
consisted of the hearing of the Court of Appeal of New South Wales
from 27 July until 31 July 1987 and its judgment of 24 September 1987
dismissing the Attorney General's appeal, which decision was upheld by
the High Court of Australia on 2 June 1988, after having heard the
case from 8 until 10 March 1988. During these proceedings no attempt
was made to read out parts of "Spycatcher" in open court. In the
meantime the substantive trial of the Attorney General's application
for permanent injunctions against The Observer and The Guardian took
place before the English High Court during the latter part of November
and early December 1987. On 21 December 1987 Scott J. dismissed the
actions, discharged the injunctions against these two newspapers, but
found that The Sunday Times had been in breach of duty for publishing
an extract from "Spycatcher" on 12 July 1987. This decision was
upheld by the Court of Appeal on 10 February 1988 and the House of
Lords on 13 October 1988. Although Scott J. and the Court of Appeal
maintained the temporary injunctions pending completion of the English
appeal proceedings, the Government contended that in effect they
restored the original proviso of the temporary injunctions which
permitted the unrestricted reporting of the Australian proceedings.
Thus the House of Lords' proviso of 30 July / 13 August 1987 had no
effect on the reporting of the Australian Court of Appeal hearing from
27 to 31 July 1987 and had been effectively removed by the English
Court of Appeal in February 1988 before the High Court of Australia
heard the final appeal in that country in March 1988. The applicant
maintained, however, that the House of Lords' proviso had the effect
of restraining the newspaper reporting of the Australian proceedings.
"Spycatcher" had been published in the United States of
America in July 1987 and thereafter throughout the world, including
many countries in Western Europe. No ban on the importation of the
book was imposed by the United Kingdom Government.
COMPLAINTS
The applicant complained that he was a victim of a violation
of Article 10 of the Convention, in particular his right to receive
information regardless of frontiers, as regards the proviso imposed by
the House of Lords in July/August 1987 limiting English newspaper
reporting of the Australian "Spycatcher" proceedings to the
"disclosure or publication of any judgment given in open court". He
contended that the honest reporting of open court proceedings could
not have posed a threat to national security, territorial integrity or
public safety, especially as the book itself was readily available in
the United Kingdom. Nor could it have posed a threat to the other
legitimate interests protected by Article 10 para. 2 of the
Convention. He stated that he had no domestic remedy available to him
to challenge the House of Lords' decision. He stressed that it was
the effective censorship on the reporting of the Australian court
proceedings about which he complained.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 October 1987 and
registered on 6 January 1988.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
7 October 1988. It decided, in accordance with Rule 42 para. 2 (b) of
its Rules of Procedure, to give notice of the application to the
respondent Government and to invite the parties to submit their
written observations on admissibility and merits. The Government's
observations were submitted on 27 January 1989, to which the applicant
replied on 26 April 1989.
THE LAW
The applicant has complained of the interim injunction imposed
by the House of Lords in its decision of 30 July / 13 August 1987,
which purportedly limited newspaper reporting of the Australian
"Spycatcher" proceedings to the disclosure or publication of any
judgment given in open court. He claimed thereby to be a victim of a
violation of Article 10 (Art. 10) of the Convention, the relevant part
of which reads as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers ....
2. The exercise of these freedoms, since it carries with
it duties and responsibiities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society
... for the protection of ... the rights of others, ... or
for maintaining the authority ... of the judiciary."
The applicant contended that the aforementioned measure was
intended to restrain reporting of the Australian proceedings and to
intimidate the British press into publishing incomplete reports about
them. He thereby was unable to receive full information on these
matters. He claimed that it cannot have been justified to prevent
extracts of the book reaching the public as the whole book was easily
available to anyone who wished to buy it from abroad. Whilst there
may be millions of other British newspaper readers whose freedom of
expression was thus abrogated, the applicant submitted that his
complaint is not an actio popularis, for he is speaking for himself in
defence of his own Article 10 (Art. 10) rights. He submitted that the
interference with his freedom of expression could not be justified,
the full, honest reporting of the Australian proceedings representing
no threat to the interests protected by the second paragraph of
Article 10 (Art. 10) of the Convention.
The Government replied that the injunction imposed by the
House of Lords did not restrict bone fide reporting of the Australian
proceedings, but only the repetition of verbatim extracts of
"Spycatcher" which might have been read out in open court. This was
borne out by the continued extensive coverage of the Australian
proceedings in the British press at the material time. As it turned
out, the House of Lords' reporting proviso had no practical incidence
because it was issued too late to restrict reporting of the hearing
before the Court of Appeal of New South Wales and had been lifted by
the English Court of Appeal before the final hearing was held in the
High Court of Australia. The Government considered that in these
circumstances the applicant could not be considered to be a victim of
a violation of Article 10 (Art. 10) of the Convention as he had not been
remotely or directly affected by the House of Lords' decision. There
was no evidence that the applicant or any other member of the British
newspaper reading public, was denied information about the Australian
proceedings. Alternatively, the Government submitted that, if there
had been an interference with the applicant's freedom of expression,
it was prescribed by law and necessary in a democratic society for the
protection of the rights of others and/or for maintaining the
authority of the judiciary, within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention.
The Commission has examined the particular facts of the case
and notes that the House of Lords' proviso in question had no
practical incidence on the reporting of the Australian "Spycatcher"
proceedings. If the applicant had needed details about the book he
could have obtained it himself for, as he acknowledges, it was readily
available, no ban on its importation into the United Kingdom having
been imposed by the Government. The Commission finds that the
applicant has not substantiated his claim that there has been an
interference with his freedom of expression ensured by Article 10
para. 1 (Art. 10-1) of the Convention. In these circumstances the Commission
concludes that the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy