Application No. 14644/89
TIMES NEWSPAPERS Ltd and Andrew NEIL
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 8 October 1991)
TABLE OF CONTENTS
Page
I. INTRODUCTION (paras. 1-15) 1-3
A. The application (paras. 2-4) 1
B. The proceedings (paras. 5-10) 1-2
C. The present Report (paras. 11-15) 2-3
II. ESTABLISHMENT OF THE FACTS (paras. 16-29) 4-9
A. The particular circumstances of the case 4-8
(paras. 16-26)
B. The relevant domestic law (paras. 27-29) 8-9
III. OPINION OF THE COMMISSION (paras. 30-68) 10-18
A. Complaints declared admissible (para. 30) 10
B. Points at issue (para. 31) 10
C. As regards Article 10 of the Convention 10-16
(paras. 32-57)
a) Interference with freedom of expression 11-12
(paras. 34-39)
b) Prescribed by law 12-13
(paras. 40-41)
c) Legitimate aim 13
(paras. 42-43)
d) Necessary in a democratic society 13-16
(paras. 44-56)
Conclusion (para. 57) 16
D. As regards Article 13 of the Convention 16-17
(paras. 58-61)
Conclusion (para. 61) 17
E. As regards Article 14 of the Convention 17-18
read in conjunction with Article 10
(paras. 62-65)
Conclusion (para. 65) 18
F. Recapitulation (paras. 66-68) 18
Dissenting opinion of Mr. Loucaides 19
APPENDIX I History of the proceedings 20-21
APPENDIX II Decision on the admissibility 22-30
of the application
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are Times Newspapers Ltd, publishers of The
Sunday Times, a national Sunday newspaper published in the United
Kingdom, and that newspaper's editor, Andrew Neil, a British citizen,
born in 1949 and resident in London. They were represented before the
Commission by Messrs. Theodore Goddard, Solicitors, London.
3. The application is directed against the United Kingdom
(hereafter abbreviated to UK). The respondent Government were
represented by their Agent, Mr. M.C. Wood, succeeded by Mrs. A.F.
Glover, both of the Foreign and Commonwealth Office.
4. The case concerns the applicants' complaint that the House of
Lords judgment of 13 October 1988 (Attorney General v. Guardian
Newspapers and Others [1988] 3 WLR to which they were a party) required
them to pay partial costs and to account to the Attorney General for
any profits made from their publication of an extract from Peter
Wright's book "Spycatcher" on 12 July 1987 in The Sunday Times. The
application raises issues under Articles 10, 13 and 14 of the
Convention.
B. The proceedings
5. The application was introduced on 2 February 1989 and
registered on 15 February 1989. After a preliminary examination of the
case by the Rapporteur, the Commission considered the admissibility of
the application on 4 December 1989. It decided to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits. The
Government's observations were submitted, after an extension of the
time limit, on 19 April 1990. The applicants' observations in reply
were submitted, after an extension of the time limit, on 9 July 1990.
6. On 5 October 1990 the Commission decided to hold a hearing on
the admissibility and merits of the application, pursuant to Article
50 para. b of its Rules of Procedure. This hearing was held in
Strasbourg on 11 April 1991. At the hearing the Government were
represented by their Agent, Mrs. A. Glover, of the Foreign and
Commonwealth Office, Mr. N. Bratza, QC, and Mr. P. Havers, of
counsel, and Mr. D. Brummell, Treasury Solicitors. The applicants
were represented by Mr. A. Lester, QC, and Mr. D. Pannick, of
counsel, and Mr. A. Whitaker, Legal Manager of Times Newspapers Ltd.
7. On 15 April 1991 the applicants submitted certain information
about their payment of the Attorney General's costs.
8. On 26 April 1991 the parties were sent the text of the
Commission's decision on admissibility and they were invited to submit
such further evidence or information on the merits of the case as they
wished.
9. Further information was provided by the applicants on 4 June
1991. The Government confirmed on 5 June 1991 the information provided
by the applicants on 15 April 1991. No further information or
observations were submitted by the parties.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reactions the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes in plenary session, the following members being
present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
12. The text of this Report was adopted by the Commission on 8
October 1991 and is now transmitted to the Committee of Ministers of
the Council of Europe, in accordance with Article 31 para. 2 of the
Convention. 13. The purpose of the Report, pursuant to Article 31
para. 1 of the Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
14. A schedule setting out the history of the proceedings before
the Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
15. The pleadings of the parties, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. The full facts giving rise to this application are set out in
the Commission's Report adopted on 12 July 1990 in Application No.
13166/87 brought by the same applicants against the UK. The present
case is an extension of that application. There follows a brief
summary of the relevant facts which are not disputed by the parties.
17. Peter Wright, a former member of the British Security Service
MI5, sought to publish his memoirs in a book entitled "Spycatcher". The
book contained several allegations of misconduct on the part of MI5.
Much of the material in the book had already been disclosed by other
authors or in television programmes, including a Granada Television
interview with Mr. Wright in 1984. "Spycatcher" was first to be
published in Australia in 1985 but the UK Government, represented by
the Attorney General, instituted proceedings in the Australian courts
to prevent publication. In June 1986 the Observer and Guardian
newspapers published short reports about some of the allegations in the
book. The Attorney General instituted proceedings against these
newspapers for breach of confidence in the Chancery Division of the
High Court of Justice of England and Wales. Temporary injunctions
restraining further such reports were granted from 11 July 1986 until
the matter was finally decided on the merits by the House of Lords on
13 October 1988.
18. When granting the original injunctions on 11 July 1986 Mr.
Justice Millett noted that a special feature of the information
contained in "Spycatcher" which distinguished it from information
previously disclosed was that it derived directly from a former member
of the Security Service:
"It is clear ... that what concerns the Attorney General
is not that the defendants should campaign for an inquiry
into the conduct of the Security Service, nor that they
should expose past misconduct by its members; such matters
have been canvassed before and have received widespread
publicity, and they will again. The Attorney General's
concern is that it is sought to make use of information
supplied by Mr. Wright and attributed to him. The concern
is not with what Mr. Wright says, but with the fact that
it is a former senior officer of the Security Service
who says it.
But if this is what causes concern to the Attorney General,
it is precisely this which the defendants wish to publish.
They do not wish merely to repeat old allegations, but
to say that they have been corroborated by Mr. Wright.
Indeed, ... (the defendants) expressly claimed that there
is ... 'a compelling public interest' in the public
knowing, not that allegations have been made of Soviet
penetration of the Security Service at a high level or
of unlawful conduct on the part of members of the Service
in the past, but that it is a senior officer of the Security
Service who makes those allegations and supports them by
evidence derived from his own information acquired by him
while in the Service."
19. Despite these injunctions the applicants sought to publish
serialised extracts from "Spycatcher" before it was published in the
United States of America (hereafter abbreviated to USA) on 13 or 14
July 1987. It had been the applicants' intention to publish an
instalment of the book at least a week in advance of the American
publication, but the American publication date was brought forward. The
first extract was published in The Sunday Times on 12 July 1987, the
second applicant having employed evasive tactics to circumvent any
Government action to restrain publication. The extract was not put in
the first edition of the newspaper, but in the later editions.
Apparently The Sunday Times sales of that day were slightly above
average. In order to prevent the applicants publishing further
extracts, the Attorney General initiated two sets of proceedings, one
for contempt of court, the other for an injunction restraining further
publication, which proceedings led to the applicants being joined in
the breach of confidence suit against the Observer and Guardian
newspapers. The Attorney General was seeking permanent injunctions
against all three newspapers to restrain the publication of any of the
"Spycatcher" material. By a judgment of the House of Lords on 30 July
1987, the applicants were bound to refrain from publication of further
extracts by virtue of the temporary injunctions which prevented
publication of further reports by the Observer and Guardian newspapers,
pending the outcome on the merits of the breach of confidence
proceedings.
20. The judgment on the merits at first instance, given by Mr.
Justice Scott on 21 December 1987, exonerated the actions of the
Observer and Guardian newspapers. In contrast, however, Mr. Justice
Scott found that The Sunday Times had been in breach of a duty of
confidence by publishing extracts from "Spycatcher" on 12 July 1987.
It was held that Mr. Wright owed a duty of confidence towards the
Crown. The applicants, being the recipients of unauthorised
disclosures of information by Mr. Wright, were under the same duty of
confidence. Mr. Justice Scott emphasised that, save in the course of
the 1984 Granada T.V. broadcast, none of the allegations that had
previously been publicly made about the Security Service had been
publicly made by an "insider", i.e. a former employee of MI5 like Mr.
Wright. He also said in his judgment:
"The contents of the extracts published on 12 July 1987
include a good deal of material that could not be
represented as raising any issue on which the public
should be invited to judge or in respect of which the
public interest to be served by disclosure could be
thought to outweigh the interests of national security."
21. Accordingly, the indiscriminate publication represented a
breach of the duty owed by the applicants. The Attorney General was
therefore entitled to an account and payment of profits made by The
Sunday Times out of the publication of those extracts. Although the
extracts contained material which, if it had stood alone, The Sunday
Times would have been entitled to publish, the judge held that no
apportionment of any profit would be allowed in view of the deliberate
nature of the breach. Mr. Justice Scott concluded as follows:
"The Sunday Times published the 'Spycatcher' extract well
knowing that the Attorney General would, if he had wind of
what was afoot, seek, and be likely to obtain, an
interlocutory injunction restraining publication. The Sunday
Times published the service memoirs of an ex-officer of MI5
indiscriminately. The breach of duty was the publication
of the extract as a whole. An account of profits is an
equitable remedy. It does not follow as of course upon a
breach of duty. In the circumstances of this case, and
particularly in view of The Sunday Times' endeavours to
keep the Government in the dark and to prevent the court
from adjudicating on the propriety of the publication until
it was too late, The Sunday Times is in no position to argue
against the equity of an order that it account for the profit,
if any, made out of the publication."
22. This decision was upheld by the Court of Appeal by a majority
on 10 February 1988. Sir John Donaldson M.R., for the majority, held
that the applicants had behaved disreputably and irresponsibly in order
to serialise "Spycatcher" and escape Government attention. The Sunday
Times was in a different position from the Observer and Guardian
newspapers because in serialising the book the applicants stood in Mr.
Wright's shoes by virtue of a contract with and a licence granted by
his publishers; hence their breach of the duty of confidence. He noted
that the whole object of The Sunday Times in publishing the extract on
12 July 1987 was to get in ahead of the USA publication of the book for
its own profit.
23. Lord Justice Bingham dissented on the basis that it was then
a virtual certainty that widespread publication of the book in the USA
would almost immediately take place. He commented, however, that
although it was virtually certain that widespread publication of the
book was imminent in the USA, it was not known at that stage whether
the UK Government would seek to prohibit import of the book into the
UK, how effective such a prohibition would be, and that it would be
fair to assume that the circulation of the book in the UK might have
been relatively small.
24. Further appeal by the applicants to the House of Lords was
dismissed on 13 October 1988. Lord Keith of Kinkel held as follows:
"The next issue for examination is conveniently the one as
to whether 'The Sunday Times' was in breach of an obligation
of confidentiality when it published the first serialised
extract from 'Spycatcher' on 12 July 1987. I have no
hesitation in holding that it was. Those responsible for
the publication well knew that the material was confidential
in character and had not as a whole been previously published
anywhere. Justification for the publication is sought to be
found in the circumstance that publication in the United
States of America was known to be imminent. That will not
hold water for a moment. It was Mr. Wright and those acting
for him who were about to bring about the American publication
in breach of confidence. The fact that a primary confidant,
having communicated the confidential information to a third
party in breach of obligation, is about to reveal it similarly
to someone else, does not entitle that third party to do the
same. The third party to whom the information has been
wrongfully revealed himself comes under a duty of confidence
to the original confider. The fact that his informant is about
to commit further breaches of his obligation cannot
conceivably relieve the third party of his own. If it were
otherwise an agreement between two confidants each to publish
the confidential information would relieve each of them of his
obligation, which would be absurd and deprive the law about
confidentiality of all content. The purpose of The Sunday
Times was of course to steal a march on the American
publication so as to be the first to reveal, for its own
profit, the confidential material. The evidence of Mr. Neil,
editor of The Sunday Times, makes it clear that his intention
was to publish his instalment of 'Spycatcher' at least a full
week before the American publication and this was in the event
reduced to two days only because circumstances caused that
publication to be brought forward a week. There can be no
question but that the Crown, had it learned of the intended
publication in The Sunday Times, would have been entitled to
an injunction to restrain it. Mr. Neil employed peculiarly
sneaky methods to avoid this. Neither the defence of prior
publication nor that of just cause or excuse would in my
opinion have been available to The Sunday Times. As regards
the former, the circumstance that certain allegations had been
previously made and published was not capable of justifying
publication in the newspaper of lengthy extracts from
'Spycatcher' which went into details about the working of
the security service. As to just cause or excuse it is not
sufficient to set up the defence merely to show that
allegations of wrongdoing have been made ..."
Lord Goff concurred as follows:
"The simple fact is that, on 12 July, publication in the
United States had not taken place; certainly, on 12 July,
the information in 'Spycatcher' was not yet in the public
domain."
25. The House of Lords therefore confirmed the order that the
applicants should account for their profits to the Attorney General and
decided that the applicants should pay the costs of this part of the
appeal. However, it refused to grant any permanent injunctions
restraining the Observer or The Guardian from reporting on the contents
of the book or restraining The Sunday Times from serialising further
extracts from it because by that time "Spycatcher" was fully in the
public domain. 26. To date the applicants have not accounted for
their profits, but have paid £10,096.84 in costs to the Crown. On 11
April 1990 the Treasury Solicitor raised the question of the account
with the applicants who referred that Office to the fact that the
present application had been lodged with the Commission. The
publication of the seralised extracts resumed immediately after the
House of Lords judgment in the next edition of The Sunday Times.
B. The relevant domestic law
27. An account of profits is a form of equitable relief, the
principle underlying which is that no one should be permitted to gain
from his own wrongdoing. The nature of the equitable relief, and its
distinction from relief at law, are described in Halsbury's Laws of
England, 4th edition, volume 16, "Equity":
"1297. Principle of relief in equity. The principle
underlying relief at law is that the plaintiff has suffered
loss by the defendant's breach of contract or wrongful
conduct, and damages are awarded for the purpose of making
good this loss. The principle underlying relief in equity
is that the defendant has improperly received or withheld
property, or profits from property (such property or profits
belonging to the plaintiff) and he is required to restore the
property or to account for the profits. Thus at law the
extent of the remedy is measured by the loss to the plaintiff,
which is covered by the damages awarded; in equity the extent
of the remedy is measured by the gain to the defendant, which
is ascertained by directing an account against him."
28. The law relating to confidentiality and to the breach of a duty
of confidence was set out in the speeches in the House of Lords in the
present case and may be summarised as follows:
(1) The law has long recognised that an obligation of
confidence can arise out of particular relationships.
The obligation may be imposed by an express or implied
term in a contract but it may also exist independently of
any contract on the basis of an independent equitable
principle of confidence (per Lord Keith, at p. 781G-H;
per Lord Griffiths, at p. 793E-F; per Lord Goff, at
pp. 805H-806C).
(2) Three elements are normally required if, apart from
contract, a case of breach of confidence is to succeed:
the information itself must have the necessary quality of
confidence about it; the information must have been
imparted in circumstances importing an obligation of
confidence; and there must be an unauthorised use of that
information. Although detriment or potential detriment
to the plaintiff will mostly always form part of his
case, this may not always be necessary (per Lord Keith,
at pp. 781H-782F; per Lord Griffiths, at pp. 793F-794A;
per Lord Goff, at pp. 805G-H, 806C-G).
(3) The Crown is in a special position in relation to the
preservation of confidence; publication of information
imparted in confidence by the Government or its
predecessors will not be restrained by the grant of
injunction unless it can additionally be shown that
publication would be harmful to the public interest
(per Lord Keith, at pp. 783D-785B; per Lord Griffiths,
at p. 796A-C; per Lord Goff, at p. 807F-H).
(4) The duty of confidence is, as a general rule, also
imposed on a third party who is in possession of
information which he knows is subject to an obligation
of confidence (per Lord Keith, at p. 786A-B; per Lord
Griffiths, at p. 794A-C; per Lord Goff, at p. 806A-C).
(5) Information may lose its original confidential character
if it subsequently enters the public domain, at least in
a case where the confidential information is published by
the "confider" rather than by the "confidant" or by a
third party; information enters the public domain when it
is so generally accessible that, in all the
circumstances, it cannot be regarded as confidential (per
Lord Griffiths, at pp. 793H-794A; per Lord Goff, at
pp. 806G-H, 809E-810C).
(6) The general duty of confidence is subject to a further
qualification, namely that the public interest that
confidences should be preserved and protected by law
may be outweighed by some countervailing public interest
which favours disclosure: embraced within this limiting
principle is the so called defence of "iniquity", where
there exists a public interest in the disclosure of
wrongdoing.
29. Order 62 of the Rules of the Supreme Court 1965 confers an
unfettered discretion on courts to award costs at the conclusion of
litigation. It is normal judicial practice to order the loser to pay
the costs of the other party to the litigation. (The Supreme Court
Rules were drafted by Judges for the High Court and Court of Appeal and
appeared as the First Schedule to the Judicature Act 1875. They have
formed the basis of the Rules as subsequently developed by the
judiciary and consolidated by statute. The 1965 Rules represented a
full revision and consolidation of previous Rules and were published
as a Statutory Instrument (S.I. 1965 No. 1776).)
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
30. The Commission has declared admissible the applicants'
complaints that the House of Lords' orders of 13 October 1988,
requiring them to account for profits and to pay partial costs to the
Attorney General in the litigation to which they were a party,
constituted breaches of Articles 10, 13 and 14 (Art. 10, 13, 14) of the
Convention.
B. Points at issue
31. The following are the points at issue in the present case:
- whether the House of Lords' orders against the applicants on
13 October 1988 were in violation of the applicants' freedom of
expression ensured by Article 10 (Art. 10) of the Convention;
- whether the applicants had an effective remedy, pursuant to
Article 13 (Art. 13) of the Convention, in respect of their complaints
under Articles 10 and 14 (Art. 10, 14);
- whether the orders also constituted discrimination in violation
of Article 14 of the Convention, read in conjunction with Article 10
(Art. 14+10).
C. As regards Article 10 (Art. 10) of the Convention
32. Article 10 (Art. 10) of the Convention provides 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 responsibilities, may be subject to
such formalities, conditions, restrictions or penalties
as are prescribed by law and are necessary in a
democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention
of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information
received in confidence, or for maintaining the authority
and impartiality of the judiciary."
33. The Commission must proceed to examine whether the orders of
the House of Lords on 13 October 1988 requiring the applicants to
account for profits and pay partial costs to the Attorney General
constituted an interference with their freedom of expression ensured
by Article 10 para. 1 (Art. 10-1) of the Convention; if so, whether
that interference was prescribed by law and whether it had a legitimate
aim or aims. If this is also found to be the case, the Commission must
finally consider whether the interference was necessary, i.e.
corresponded to a pressing social need and was proportionate to the
pursuit of that or those legitimate aim or aims. In the background to
its examination of the present case are the Commission's Opinions in
its Reports in related cases: No. 13166/87, the same applicants, Times
Newspapers Ltd. and Andrew Neil, v. the UK, and No. 13585/88, The
Observer Ltd. and Others and Guardian Newspapers Ltd. and Others v. the
UK (Reports adopted by the Commission on 12 July 1990).
a) Interference with freedom of expression
34. The applicants claimed that the House of Lords' judgment of 13
October 1988, insofar as it ordered them to pay part of the Attorney
General's costs and to account to him for the profits made from their
publication of an extract from "Spycatcher" on 12 July 1987,
constituted an interference with their freedom of expression guaranteed
by Article 10 para. 1 (Art. 10-1) of the Convention.
35. The applicants laid emphasis on the fact that the extract from
Peter Wright's book "Spycatcher" contained important allegations of
serious misconduct by MI5, part of the British Secret Service,
allegations of obvious public interest. The publication of
"Spycatcher" in the USA was imminent and the applicants had concluded
that any secrecy in its contents had already been irretrievably lost.
They submitted, inter alia, that the interference with their freedom
of expression by the House of Lords judgment resulted from that court's
finding that they had acted unlawfully, which finding in itself
amounted to a formality, penalty and interference under Article 10
para. 2 (Art. 10-2) of the Convention. They also contended that the
orders amounted to a penalty, which had a chilling effect on freedom
of expression, inhibiting the applicants for the future. The binding
nature and precedent of the judgment will deter future publication of
information in circumstances similar to those of the present case, and
thus constituted a substantial continuing restriction on freedom of
expression.
36. The Government submitted that the judgment did not interfere
with the applicants' freedom of expression. They emphasised the fact
that "Spycatcher" had not been published in the USA as of 12 July 1987,
or anywhere else in the world. Although the allegations contained in
the book had received some newspaper coverage, such reports were not
as long or as detailed as The Sunday Times' extract and not all the
material in the book had been previously disclosed. There had been no
prior restraint of The Sunday Times' publication of the extract - they
had published it. The fact that they could not publish further
extracts for a period was not because of the House of Lords' judgment
in question, but because of injunctions on the British media, which
were a separate issue dealt with in the applicants' previous case to
the Commission, Application No. 13166/87. After the judgment they were
free to publish the remaining extracts. The applicants have not
accounted for profits to date, if indeed there were any profits. In
view of the applicants' efforts to evade Government attention, the
extract of 12 July 1987 was published without advance publicity and it
seemed that sales of The Sunday Times that day were not greatly
increased. Any profits made were probably therefore minimal.
37. The Government conceded that an enforced order to account for
profits could constitute a penalty and thereby an interference with
freedom of expression, within the meaning of Article 10 para. 1 (Art.
10-1) of the Convention. An account for profits in equity contains a
penal element in the sense that it is intended to deprive a wrong-doer
of the fruits of his wrongs, but the particular facts of this case, as
emphasised above, do not disclose such a penalty and in reality have
had no chilling effect on the applicants' freedom of expression. Nor
could the award of partial costs against the applicants amount to such
a penalty, being the simple application of a general practice that in
all civil cases in the UK, whether or not related to a breach of
confidence, the loser pays.
38. The Commission is of the opinion that there has been an
interference with the applicants' freedom of expression in the present
case. The Commission notes the Government's concession that an order
to account for profits contains a penal element. It also notes that
the Attorney General has not renounced or waived the House of Lords'
order on profits. Even if those profits might be minimal, the order
still stands and could be enforced if the Attorney General wished. It
also notes that the applicants have paid over £10,000 in costs to the
Attorney General, as they were required to do by the House of Lords'
judgment. Although the payment of costs is a normal consequence of
unsuccessful civil litigation it would be unrealistic to dismiss the
deterrent effect of costs' liability in any future exercise of the
applicants' freedom of expression on a similar matter.
39. In sum, the sanction of an account for profits and the
liability to pay costs must have a restraining influence on the media's
exercise of freedom of expression in areas affected by the law relating
to breach of confidence. In combination they may be said to have
constituted a penalty and, thereby, an interference with the
applicants' freedom of expression in the present case within the
meaning of Article 10 para. 1 (Art. 10-1) of the Convention.
b) Prescribed by law
40. It is undisputed that the House of Lords' orders against the
applicants, requiring them to account for profits and pay the partial
costs of the Attorney General, were prescribed by law within the
meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
41. The House of Lords noted that Peter Wright, the author of
"Spycatcher", had been a member of MI5, part of the British Security
Service. It held that he owed a life-long duty of confidence to the
Crown, and, in principle, he was in breach of that duty in publishing
"Spycatcher", which constituted his memoirs of his confidential work
at MI5. The applicants, knowing of that duty of confidence, were also
bound by it. Thus, on the basis of the common law relating to
confidentiality and to a breach of a duty of confidence, the House of
Lords found that the applicants, in publishing an extract from
"Spycatcher" on 12 July 1987, had acted unlawfully (cf. paras. 24 and
28 above). The principles of relief in equity are also part of the
common law, and include the possibility of an account for profits, as
ordered in the present case, to sanction unjust enrichment from an
unlawful act (cf. para. 27 above). Similarly, a court order requiring
the payment of costs by the loser in a civil suit is an established
judicial practice based on the unfettered discretion of courts to award
costs, pursuant to Order 62 of the Rules of the Supreme Court 1965 (cf.
para. 29 above); hence the partial costs order against the applicants.
c) Legitimate aim
42. Interference with freedom of expression may only be justified
if it pursues a legitimate aim such as protecting the interests of
national security, preventing the disclosure of information received
in confidence or maintaining the authority of the judiciary.
43. It is not disputed by the parties that the House of Lords
orders fell within the scope of preventing the disclosure of
information received in confidence, within the meaning of Article 10
para. 2 (Art. 10-2) of the Convention, by means of depriving the
applicants, who had disclosed information in breach of confidence, of
any profits they might have derived from that breach. Moreover, the
Commission does not lose sight of the fact that an important background
element of the confidentiality question in the present case was the
protection of national security, also recognised as a legitimate aim
by the second paragraph of Article 10 (Art. 10). It is clear that one
of the issues throughout the "Spycatcher" litigation has been the
national security question whether an appearance of confidentiality is
essential to the effective operation of a State's security service and
whether such efficacy would be impaired if senior officers were known
to be free to disclose or publicise what they learned during their
service (cf. No. 13585/88, The Observer Ltd. and Others and Guardian
Newspapers Ltd. and Others v. the UK, Comm. Report 12.7.90 paras. 19,
23, 43 quotation (i) (d), 47 and 48).
d) Necessary in a democratic society
44. The key issue in the present case is whether it was necessary
in the circumstances for the House of Lords to order the applicants to
account for profits and pay the partial costs of the Attorney General.
45. The adjective "necessary" within the meaning of Article 10
para. 2 (Art. 10-2) of the Convention is not synonymous with
"indispensable" or as flexible as "reasonable" or "desirable", but it
implies the existence of a pressing social need.
46. The notion of necessity implies that the interference of which
complaint is made corresponds to this pressing social need, that it is
proportionate to the legitimate aim pursued and that the reasons given
by the national authorities to justify it are relevant and sufficient
(Eur. Court H.R., Barthold judgment of 25 March 1985, Series A no. 90,
pp. 24-25, para. 55).
47. The initial responsibility for securing Convention rights and
freedoms lies with the individual Contracting State. Accordingly
Article 10 para. 2 (Art. 10-2) of the Convention leaves the Contracting
State a margin of appreciation, ultimate supervision of which remains
with the Convention organs. The scope of the margin of appreciation
will vary depending on the aim pursued under Article 10 para. 2 (Art.
10-2) of the Convention. The aim of the restriction in the present
case is the prevention of the disclosure of information received in
confidence, the protection of national security being a background
element (see para. 43 above).
48. Freedom of expression constitutes one of the essential
foundations of a democratic society, in particular freedom of political
and public debate. This is of special importance for the free press
which has a legitimate interest in reporting on and drawing the
public's attention to deficiencies in the operation of Government
services, including possible illegal activities. It is incumbent on
the press to impart information and ideas about such matters and the
public has a right to receive them (cf. mutatis mutandis the
aforementioned Sunday Times judgment, p. 40, para. 65, and Eur. Court
H.R., Lingens judgment of 8 July 1986, Series A no. 103, p. 26, paras.
41-42). However, the Commission acknowledges that the preservation of
confidentiality within a State's security service is an essential
element of its efficacy in the protection of the interests of national
security. It is necessary to ensure the observance of this
confidentiality by imposing penalties on violators if the credibility
of the security service should endure (Dec. No. 10343/83, 6.10.83, D.R.
35 p. 224 at p. 228 and No. 12945/87, Hatjianastasiou v. Greece, Comm.
Report 6.10.91, paras. 64-79).
49. That being said the inherent secrecy of a security service
carries with it a danger of abuse which could have harmful consequences
for democratic society as a whole. A security system which impedes
freedom of the press by the law of confidentiality can only be regarded
as necessary in a democratic society if there are adequate safeguards
against abuse and a fair balance is struck between the preservation of
confidentiality and the public's right to be informed of deficiencies
(cf. mutatis mutandis Eur. Court H.R., Malone judgment of 2 August
1984, Series A no. 82, p. 37, para. 81 on possible abuse in secret
detection systems, and the Gaskin judgment of 7 July 1989, Series A no.
160, pp. 17 and 20, paras. 43 and 49 on notions of confidentiality
linked with efficiency in public services).
50. The Commission must now examine whether, in the circumstances
of the present case, there was a pressing social need to order the
applicants to account for profits and pay the partial costs of the
Attorney General, and whether such orders were proportionate to the aim
pursued.
51. The applicants submitted that the interference with their
freedom of expression met no pressing social need and was
disproportionate to any legitimate aim pursued. They again emphasised
the importance and nature of the allegations in the published extract
which denounced serious wrong-doings on the part of Government, and the
considerable public interest in such matters. The information in
question posed no genuine threat to the national security of the UK if
learnt by its enemies and any secrecy in the information was already
irretrievably lost in view of the imminent publication of "Spycatcher"
in the USA (cf. mutatis mutandis Eur. Court H.R., Weber judgment of
22 May 1990, Series A no. 177, pp. 22-23, paras. 49-52). In the
applicants' view there was no difference in principle between their
publication on 12 July 1987 or a week later.
52. The Government contended that if there had been any
interference with the applicants' freedom of expression it was minor,
in view of the facts emphasised above (para. 36), particularly the fact
that the applicants had not accounted for any profits to the Attorney
General. There was no other possible remedy to prevent the applicants
profiting from their wrong-doing after breaching the duty of confidence
other than the more draconian remedy of a permanent injunction on
publication. The information they had published had not been in the
public domain on 12 July 1987; if it had been the House of Lords would
not have made the contested orders. The fact that the publication of
"Spycatcher" was imminent could not render it unnecessary or
disproportionate to find that the applicants had acted in breach of
confidence by deliberately anticipating the publication, or to make the
usual order that they account for any profits derived from such a
breach. The orders had been well within the margin of appreciation
afforded to Contracting States by the Convention in this field and were
not disproportionate to the legitimate aim pursued.
53. The Commission recalls that in the related application brought
by the applicants, No. 13166/87, it found a violation of Article 10
(Art. 10) of the Convention insofar as temporary injunctions were
imposed on the applicants by the House of Lords on 30 July 1987
preventing publication of further extracts from "Spycatcher" until the
litigation had been tried on its merits (No. 13166/87, Times Newspapers
Ltd. and Andrew Neil v. the UK, Comm. Report 12.7.90, paras. 66-77).
It also found a violation of Article 10 (Art. 10) of the Convention
insofar as earlier temporary injunctions had been imposed on two other
English newspapers since July 1986 preventing publication of any
further reports about the contents of "Spycatcher" pending the
determination of the litigation on the merits (No. 13585/88, The
Observer Ltd. and Others and Guardian Newspapers Ltd. and Others v. the
UK, Comm. Report 12.7.90, paras. 70-91). However the present case can
be distinguished from these two earlier applications because it
concerns different measures, with different aims, for different conduct
on the applicants' part.
54. The present case concerns a penalty imposed for publishing the
extract before "Spycatcher" was published in the USA. The applicants'
earlier case concerned the imposition of temporary injunctions to
prevent the publication of the other extracts after the book had been
published in the USA. The present case has a direct link to Peter
Wright, who owed a duty of confidence to the Crown. In publishing the
extract from his book the applicants deliberately published "insider"
information, with the greater impact that such an authoritative source
could have had on their readership. The extract was longer and more
detailed than previous newspaper reports had been. The earlier case
brought by the Observer and Guardian newspapers concerned their short
and fair reporting of Mr. Wright's allegations about misconduct in the
Security Service, which allegations were not shown to have been
directly culled from the book itself, but from publicly available
information, previously disclosed. The present case concerns the
prevention of the disclosure of information received in confidence,
i.e. information received in confidence by Mr. Wright during his work
for the Security Service which he had a life-long duty to protect, and
a penalty imposed for the violator of that breach of confidence, the
applicants in this instance, within UK jurisdiction. Both of the
earlier cases, although to be seen in the context of the
confidentiality question, primarily concerned the maintenance of the
authority and the impartiality of the judiciary, which included the
protection of the litigation rights of the Attorney General pending the
final determination of the merits of his claim for permanent
injunctions against the newspapers concerned.
55. The Commission agrees with the Government that the interference
with the applicants' freedom of expression in the present case was
minor. It notes that there was no prior restraint imposed on the
publication of the extract by The Sunday Times, unlike the prior
restraint disclosed in the two earlier applications. It also notes
that the House of Lords' judgment of 13 October 1988 allowed them to
publish the remaining extracts from the book, which they proceeded to
do. Moreover the Commission finds nothing unreasonable or arbitrary
in the House of Lords' designation of the book's publication day in the
USA as the crucial date which led to the major change in circumstances
in the "Spycatcher" litigation. It considers that the designation of
such a date fell well within the State's margin of appreciation in this
area.
56. In the light of the above considerations, the Commission is of
the opinion that the House of Lords' orders of 13 October 1988 to
account for profits and pay partial costs were necessary in that they
met a pressing social need to sanction the applicants' violation of
breach of confidence. It is also of the view that those sanctions,
given their minor nature, impact and consequences, and given the
respondent State's margin of appreciation, were proportionate to the
legitimate aim of preventing the disclosure of information received in
confidence and could be regarded as necessary within the meaning of
Article 10 para. 2 (Art. 10-2) of the Convention.
Conclusion
57. The Commission concludes, by 11 votes to 3, that there has been
no violation of Article 10 (Art. 10) of the Convention.
D. As regards Article 13 (Art. 13) of the Convention
58. Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in
an official capacity." 59. The applicants have contended that
the House of Lords in its judgment of 13 October 1988 failed to apply
the principles laid down in Article 10 para. 2 (Art. 10-2) of the
Convention. Because the Convention, or its standards, are not
incorporated into UK domestic law, the applicants submitted that they
had no effective remedy before a national authority for their claims
of a breach of Articles 10 and 14 (Art. 10, 14) of the Convention. The
Government contended that the applicants' complaint was unclear,
unsubstantiated and disclosed no appearance of a breach of Article 13
(Art. 13) of the Convention.
60. The Commission is of the opinion that the interpretation of the
Convention as a whole imposes certain limitations on the right to a
remedy recognised by Article 13 (Art. 13). In the present case the
applicants complain of a decision by the highest judicial authority in
the English legal system. The Commission considers that in this
situation Article 13 (Art. 13) does not require yet a further remedy.
Article 13 (Art. 13) does not, therefore, apply in this case (cf.
aforementioned No. 13166/87, Times Newspapers Ltd. and Andrew Neil v.
the UK, Comm. Report 12.7.90 paras. 78-81).
Conclusion
61. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention.
E. As regards Article 14 of the Convention
read in conjunction with Article 10 (Art. 14+10)
62. Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."
63. The applicants have contended that the House of Lords' judgment
of 13 October 1988 arbitrarily discriminated against them and their
readers. It imposed an interference with their freedom of expression
when the relevant information was becoming widely available to persons
beyond UK frontiers and when the information could be imported into the
UK by anyone who chose to buy the book from a US bookshop. In the
applicants' view there was no objective and reasonable justification
for such differences of treatment in the enjoyment of freedom of
expression regardless of frontiers. The Government contended that the
applicants' complaint was unclear, unsubstantiated and, like their
complaint under Article 13 (Art. 13) of the Convention, disclosed no
appearance of a breach of Article 14 (Art. 14) of the Convention.
64. The Commission is of the opinion that the applicants cannot
claim to be victims of a violation of Article 14 (Art. 14) of the
Convention in respect of their readers' freedom of expression (right
to receive information) ensured by Article 10 (Art. 10). It also finds
that their claim that the relevant information was becoming widely
available beyond UK frontiers and that the book could be imported with
impunity into the UK was not true on 12 July 1987 when they published
the "Spycatcher" extract. They have not shown that anyone else
publishing an extract from "Spycatcher" in the UK before the book's
publication in the USA would not have been liable to the same sanctions
as they were. In these circumstances the Commission considers that the
applicants did not suffer any discrimination in the enjoyment of their
Article 10 (Art. 10) rights, contrary to Article 14 (Art. 14) of the
Convention.
Conclusion
65. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 14 of the Convention read in conjunction
with Article 10 (Art. 14+10).
F. Recapitulation
66. The Commission concludes, by 11 votes to 3, that there has been
no violation of Article 10 (Art. 10) of the Convention (para. 57).
67. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention (para. 61).
68. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 14 of the Convention read in conjunction
with Article 10 (Art. 14+10) (para. 65).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Dissenting opinion of Mr. Loucaides
I am unable to agree with the majority of the Commission in this
case. In particular I do not share their view that the sanction in
question could be regarded as "necessary in a democratic society"
within the meaning of Article 10 para. 2 of the Convention. In this
respect I rely on my opinion in Application No. 13585/88 (paragraphs
82-85 of the Report of the Commission of 12 July 1990), the reasoning
of which I consider also applies in the present case (mutatis
mutandis). The aforesaid Application concerned restrictions on similar
publications for the period 11 July 1986 until 30 July 1987. The
present case concerns the publication of an extract from "Spycatcher"
on 12 July 1987, i.e. 2 days before the book itself went on sale in
U.S.A. This fact strengthens even more my conclusion that the sanction
under consideration in the present case was an unjustified interference
with the freedom of expression of the applicants. On 12 July 1987 the
publication of the book was imminent and inevitable and therefore it
was unnecessary to penalise the applicants for publishing something
that was any way about to enter the public domain. In this context it
should be noted that the respondent Government made no attempt to
prevent the book's importation into the United Kingdom.
The fact that the House of Lord's orders for partial costs and
an account for profits in respect of the publication of 12 July 1987
have not been enforced by the Government has not neutralised the
penalty or sanction, because the Government have not renounced the
Attorney General's right to enforce the orders. Hence the applicants
remain legally accountable under these orders.
For these reasons I find that the House of Lord's orders of 13
October 1988 against the applicants breached Article 10 of the
Convention.
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
02.02.89 Introduction of the application
15.02.89 Registration of the application
Examination of admissibility
04.12.89 Commission's decision to invite
the parties to submit their
written observations on
admissibility and merits
19.04.90 Government's observations
09.07.90 Applicants' reply
05.10.90 Commission's decision to hold
a hearing
11.04.91 Hearing on admissibility and merits,
the parties being represented as
follows:
Government:
Mrs. A. Glover, Agent
Mr. N. Bratza, QC, Counsel
Mr. P. Havers, Counsel
Mr. D. Brummel, Treasury Solicitors
Applicants:
Mr. A. Lester, QC, Counsel
Mr. D. Pannick, Counsel
Mr. A. Whitaker, Legal Manager of
Times Newspapers Ltd.
11.04.91 Commission's decision to declare
the application admissible
Examination of the merits
15.04.91 Information from applicants
26.04.91 Parties invited to submit such further
written observations or information
as they wished
04.06.91 Information from applicants
05.06.91 Information from Government
07.09.91 Commission's consideration of
state of proceedings
08.10.91 Commission's deliberations on
merits and on text of Article 31
Report. Final votes.
Adoption of Report
Full & Egal Universal Law Academy