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