Lexploria

Application No. 13585/88

THE OBSERVER Ltd and Others

and

GUARDIAN NEWSPAPERS Ltd and Others

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 12 July 1990)

TABLE OF CONTENTS

Page

I. INTRODUCTION (paras. 1-12) 1-2

A. The application (paras. 2-4) 1

B. The proceedings (paras. 5-7) 1-2

C. The present Report (paras. 8-12) 2

II. ESTABLISHMENT OF THE FACTS (paras. 13-57) 3-16

III. OPINION OF THE COMMISSION (paras. 58-104) 17-27

A. Points at issue (para. 58) 17

B. As regards Article 10 of the Convention 17-25

(paras. 59-91)

a) Interference with freedom of expression 18

(para. 61)

b) Prescribed by law 18-19

(paras. 62-66)

c) Legitimate aim 19-20

(paras. 67-69)

d) Necessary in a democratic society 20-25

(paras. 70-91)

aa) Necessity: the period 11 July 1986 21-24

until 30 July 1987 (paras. 79-86)

Opinion of MM. Frowein, Busuttil 21-23

and Weitzel (paras. 79-81)

Opinion of Mrs. Thune, MM. Rozakis 23-24

and Loucaides (paras. 82-85)

Conclusion (para. 86) 24

bb) Necessity: the period 30 July 1987 24-25

until 13 October 1988 (paras. 87-91)

Conclusion (para. 91) 25

C. As regards Article 13 of the Convention 25-26

(paras. 92-95)

Conclusion (para. 95) 26

D. As regards Article 14 of the Convention 26-27

(paras. 96-100)

Conclusion (para. 100) 27

E. Recapitulation (paras. 101-104) 27

Concurring opinion of Sir Basil Hall in respect of the 28

period 30 July 1987 until 13 October 1988

Partly dissenting opinion of MM. Nørgaard, Jörundsson, 29

Schermers, Danelius and Sir Basil Hall

APPENDIX I History of the proceedings 30-31

APPENDIX II Decision on the admissibility 32-49

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 application is brought by The Observer Ltd, Donald

Trelford, David Leigh, Paul Lashmar, Guardian Newspapers Ltd, Peter

Preston and Richard Norton-Taylor. The Observer Ltd are the

proprietors and publishers of the national Sunday newspaper the

"Observer", published in the United Kingdom (hereafter abbreviated to

UK). Mr. Trelford is the editor of the Observer and MM. Leigh and

Lashmar are reporters employed on the Observer. Guardian Newspapers

Ltd are the proprietors and publishers of the UK national daily

newspaper "The Guardian". Mr. Preston is the editor of The Guardian

and Mr. Norton-Taylor one if its reporters. All these gentlemen are

British citizens. The applicants were represented before the

Commission by Messrs. Lovell White and Durrant, Solicitors, London, in

particular Mrs. J. McDermott, Solicitor, together with Mr. D. Browne,

Counsel, and Miss J. Braybrook, Solicitor.

3. The application is directed against the United Kingdom. The

respondent Government were represented by their Agent, Mr. M. Wood of

the Foreign and Commonwealth Office, Sir Patrick Mayhew, QC, MP,

Attorney General, Counsel, Mr. N. Bratza, QC, Counsel, Mr. P. Havers,

Counsel, Mrs. S. Evans, Home Office, and Mrs. S. Marsh, Legal

Secretariat to the Law Officers.

4. The application concerns temporary injunctions preventing

newspaper publication of details of the contents of the book

"Spycatcher" by Peter Wright, a retired member of the British Security

Service. It raises issues under Articles 10, 13 and 14 of the

Convention.

B. The proceedings

5. The application was introduced on 27 January 1988 and

registered on 3 February 1988. After a preliminary examination of the

case by the Rapporteur, the Commission decided on 7 October 1988 to

give notice of the application to the respondent Government, pursuant

to Rule 42 para. 2 (b) of the Rules of Procedure, and to invite the

parties to submit their written observations on the admissibility and

merits of the application. On 27 January 1989 the Government

submitted their observations on admissibility and merits, to which the

applicants replied on 25 April 1989.

6. On 9 May 1989 the Commission decided to hold a hearing on the

admissibility and merits of the application, to be joined with that of

Times Newspapers Ltd and Neil v. UK, Application No. 13166/87. The

hearing was held on 5 October 1989 with the parties represented as

above (paras. 2 and 3). Following the hearing and deliberations, the

Commission declared the two applications admissible and disjoined

them. On 8 November 1989 the parties were sent the text of the

Commission's decision on admissibility and they were invited to submit

further information and observations on the merits of the case. The

applicants submitted the information requested on 15 December 1989.

The Government submitted observations and information on 8 January

1990 to which the applicants replied on 21 February 1990. The

Government submitted further observations on 2 July 1990.

7. 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

8. 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, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

M. C.L. ROZAKIS

Mr. L. LOUCAIDES

9. The text of this Report was adopted by the Commission on

12 July 1990 and is now transmitted to the Committee of Ministers of

the Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

10. 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.

11. 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.

12. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

13. The application concerns restrictions imposed on the reporting

of details about the book "Spycatcher" by Peter Wright.

14. Mr. Wright was for many years employed by the British

Government as a member of MI5, a branch of the British Security

Service. He retired in 1976. He now lives in Australia. He decided

to write his memoirs, including an account of what he claimed were

illegal activities by the British Security Service in particular MI5.

In those memoirs entitled "Spycatcher" (hereafter referred to as the

book), Mr. Wright alleged, inter alia, that MI5 conducted unlawful

actitivies calculated to undermine the Labour Government of 1974-79,

burgled and bugged the embassies of allied and hostile countries,

planned and participated in other unlawful and covert activities at

home and abroad and that Sir Roger Hollis, who led MI5 during the

latter part of Mr. Wright's employment, was a Soviet agent. Mr Wright

unsuccessfully sought to persuade the British Government to institute

an independent inquiry into these allegations. Such an inquiry was

also sought by, amongst others, James Callaghan (Prime Minister

1976-79 and a senior member of the Cabinet of Harold Wilson 1974-76)

and other prominent members of the Labour Government of 1974-79

including two former Home Secretaries, Roy Jenkins and Merlyn Rees.

Part of the material in "Spycatcher" had already been published in a

number of books about the British Security Service written by Chapman

Pincher. Moreover, on 16 July 1984 Mr. Wright had given a lengthy

interview to Granada Television in its "World in Action" programme

about the work of the British Security Service. The programme was

shown again in December 1986. Other books and another television

programme on the workings and secrets of the Service were produced

around the same time, but little Government action was taken against

these authors or the media.

15. In September 1985 the Attorney General of England and Wales

(the Attorney General), on behalf of the UK Government, began

proceedings in the Equity Division of the Supreme Court of New South

Wales, Australia, to restrain publication of Mr. Wright's memoirs and

of any information contained therein derived from his work for the

British Security Service. The evidential basis for the claim by the

Attorney General was two affidavits sworn by Sir Robert Armstrong,

Secretary to the British Cabinet, on 9 and 27 September 1985. On

17 September 1985 Mr. Wright and his Australian publishers, Heinemann

Publishers Australia Pty Ltd. (Heinemann Australia), gave an

undertaking not to publish pending the hearing of the British

Government's claim for an injunction. The British Government refused

to indicate to Mr. Wright and Heinemann Australia which parts of the

book, if any, they wished to have "blue pencilled" as containing

information damaging to national security.

16. On Sunday 22 June 1986, whilst the Australian proceedings were

still pending, the applicants David Leigh and Paul Lashmar published a

short joint article in the Observer, on an inside page, giving details

of some of the contents of Mr. Wright's book. This was followed the

next day by a similar short article written by the applicant Richard

Norton-Taylor and published in The Guardian. The details disclosed by

these reports included the following allegations of improper, criminal

and unconstitutional conduct on the part of MI5 officers:

(i) MI5 "bugged" all diplomatic conferences at Lancaster

House in London throughout the 1950s and 1960s, as well as the

Zimbabwe Independence negotiations in 1979.

(ii) MI5 "bugged" diplomats from France, Germany, Greece and

Indonesia, as well as the hotel suite of Mr. Kruschev during his visit

to Britain in the 1950s, and were guilty of routine burglary and

bugging (including the entering of Russian consulates abroad).

(iii) MI5 plotted unsuccessfully to assassinate President

Nasser of Egypt at the time of the Suez crisis.

(iv) MI5 plotted against Harold Wilson during his premiership

from 1974 to 1976.

(v) MI5 (contrary to its guidelines) diverted its resources

to investigate left-wing political groups in Britain.

17. It was conceded by the applicants that the reports were not

based on generally available international press releases or similar

material. They were based on the journalists' investigations from

confidential sources. However, much of the actual information

contained in the articles had already been published in other books,

newspapers and television interviews given by Mr. Wright and other

British Security Service officers. The British Courts subsequently

inferred that, on the balance of probabilities, the journalists'

sources must have come from the offices of the publishers of

"Spycatcher" or the solicitors acting for Mr. Wright and his

publishers (Scott J. judgment of 21 December 1987 (1988) 2WLR 805 at

p. 815 F-G, see also paras. 52-53 below).

18. The Attorney General instituted proceedings for breach of

confidence in the Chancery Division of the High Court of Justice of

England and Wales against the applicants and on 27 June 1986 obtained

ex parte interim injunctions to restrain further such publication by

any of the applicants pending the trial of the actions. After an inter

partes hearing on 11 July 1986, Mr. Justice Millett (sitting in the

Chancery Division of the High Court of Justice) varied these

injunctions restraining publication. The evidential basis for the

claim by the Attorney General was the two affidavits sworn by Sir

Robert Armstrong in the Australian proceedings.

19. In his judgment Mr. Justice Millett noted that the newspapers

intended printing further information about the alleged misconduct of

the Security Service, which information was derived, directly or

indirectly, from Mr. Wright, in breach of his duty of confidentiality

to the Crown. In balancing the public interest in disclosure with the

effective operation of the Security Service, the Court had to take all

relevant considerations into account including the fact that this was

an interlocutory application and not the trial, that the injunctions

sought were merely temporary and that the refusal of injunctive relief

might cause irreparable harm and effectively deprive the Attorney

General of his rights as a litigant. At that stage Mr. Justice

Millett held that some injunctive relief was necessary because there

was credible evidence that the appearance of confidentiality was

essential to the effective operation of the Security Service. Such

efficacy would be impaired if senior officers were known to be free to

disclose what they learned in the Service. While this evidence

remained to be tested at the trial, the refusal of injunctive relief

would permit indirect publication and deprive the Attorney General of

his rights in advance of the trial. He found no overriding urgency in

the public's right to information, which, in his view, could wait

until after the trial.

20. The issue of these initial injunctions was deemed justified by

the appellate courts throughout the interlocutory proceedings.

21. The applicants appealed the Order of Mr. Justice Millett and,

on 25 July 1986, the Court of Appeal dismissed their appeal and upheld

the injunctions, with minor modifications. Under the terms of the

Orders the applicants were restrained from:

"1. disclosing or publishing or causing or permitting to be

disclosed or published to any person any information obtained by

Peter Maurice Wright in his capacity as a member of the British

Security Service and which they know, or have reasonable grounds

to believe, to have come or been obtained, whether directly or

indirectly, from the said Peter Maurice Wright;

2. attributing in any disclosure or publication made by

them to any person any information concerning the British

Security Service to the said Peter Maurice Wright whether by

name or otherwise."

22. The Orders contained the following provisos:

"1. this Order shall not prohibit direct quotation of

attributions to Peter Maurice Wright already made by

Mr. Chapman Pincher in published works, or in a television

programme or programmes broadcast by Granada Television;

2. no breach of this Order shall be constituted by the

disclosure or publication of any material disclosed in open

court in the Supreme Court of New South Wales unless prohibited

by the Judge there sitting or which, after the trial there in

action No. 4382 of 1985, is not prohibited from publication;

3. no breach of this Order shall be constituted by a

fair and accurate report of proceedings in

(A) either House of Parliament in the United Kingdom

whose publication is permitted by that House; or

(B) a court in the United Kingdom sitting in public."

23. In the judgment of the Court of Appeal interim injunctions

restraining publication were granted because Mr. Wright's book

contained secret information which, in the view of the Court, might

well cause damage to national security if disclosed. The Appellate

Committee of the House of Lords granted leave to appeal on 6 November

1986. A hearing was eventually scheduled for November 1987, but the

appeal was subsequently withdrawn in the light of the House of Lords

decision of 30 July 1987 (see paras. 41-46 below).

24. The trial of the British Government's action in Australia took

place before Mr. Justice Powell in the Equity Division of the New

South Wales Supreme Court in November and December 1986. Judgment was

delivered on 13 March 1987. Mr. Justice Powell rejected the claim by

the Attorney General against both Mr. Wright and Heinemann Australia.

Pending an appeal before the New South Wales Court of Appeal, Mr.

Wright and his publishers gave undertakings not to publish. The

appeal was heard by the New South Wales Court of Appeal in the week

commencing Monday, 27 July 1987. Judgment was reserved.

25. On 27 April 1987, The Independent published a major summary of

certain of the allegations made in Mr. Wright's book. Later the same

day, The London Evening Standard and The London Daily News published

reports of what had appeared in The Independent. The next day the

Attorney General applied for leave to move against the publishers and

editors of those three newspapers for contempt of court (hereafter

referred to as the Independent case). Leave was granted on 29 April

1987. In this application the Attorney General was acting

independently of the Government in his capacity as "the guardian of

the public interest in the due administration of justice" (judgment of

the Master of the Rolls in Attorney General v. Newspaper Publishing

Plc and Others (1987) 3WLR 942 at p. 965H). This is to be

distinguished from his capacity as Government representative in the

breach of confidence proceedings against the present applicants.

26. Similar reports appeared in Australian and American

newspapers: on 29 April 1987 in The Melbourne Age and Canberra Times,

and on 3 May 1987 in the Washington Post.

27. Following these British newspaper publications the applicants

applied on 29 April 1987 to discharge the injunctions against them on

the ground that there had been a significant change in circumstances

since the injunctions had been granted against them in 1986.

28. The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to

hear those applications on 7 May 1987, but adjourned them pending the

determination of a preliminary issue of contempt law raised in the

Independent case. He invited the Attorney General to pursue these

latter proceedings in the same court as the former proceedings, the

Chancery Division of the High Court. This the Attorney General did on

11 May 1988. On the same day, the Vice-Chancellor ordered the trial

of the preliminary issue whether a publication made in the knowledge

of an outstanding injunction against another party, and which, if made

by that other party would amount to a breach of that injunction,

constituted a criminal contempt of court for interfering with the

process of justice concerning that injunction.

29. Viking Penguin Incorporated purchased from Heinemann Australia

the United States (hereafter abbreviated to USA) publication rights to

the book and on 14 May 1987 Viking Penguin announced its intention of

publishing the book in the USA.

30. On 2 June 1987, the Vice-Chancellor decided the preliminary

issue of law in the contempt proceedings. He held that publication by

The Independent and the two London newspapers could not amount to

contempt of court because such publication was not a breach of the

express terms of the injunctions against the applicants and to which

injunctions the former had anyway not been a party. The Attorney

General lodged an appeal against the Vice-Chancellor's judgment. On

15 June 1987 the applicants applied to have the hearing of their

discharge application restored. Consideration of the discharge of the

injunctions was, however, further adjourned pending the outcome of the

Attorney General's appeal on the contempt issue in The Independent

case, the hearing of which began on 22 June 1987.

31. The Sunday Times purchased the British newspaper serialisation

rights to the book from Heinemann Australia. On 12 July 1987, The

Sunday Times published the first instalment of extracts from the book.

The newspaper explained that publication of the extracts was being

timed to coincide with publication of the book in the USA, which was

due to take place on 14 July 1987. On 13 July 1987, the Attorney

General commenced proceedings against Times Newspapers Limited and

Andrew Neil for contempt of court. (Hereafter reference will only be

made to The Sunday Times newspaper and not the company or Mr. Neil.)

On 14 July 1987, Viking Penguin published the book in the USA. It was

an immediate bestseller, some 310,000 copies having been printed in

the USA, with its fifth print run by the date of the application to

the Commission. A substantial number of copies were sold to British

citizens visiting the USA or who purchased the book by telephone or

post from bookshops in the USA. The British Government took no legal

steps to attempt to restrain publication of the book in the USA or

Canada, where it also became a bestseller. Immediately after

publication of the book in the USA, people began to bring copies of

the book into the UK. No steps were taken by the Government to

prevent such imports. It took the view that it had the powers to ban

import of the book but that any such ban was likely to be ineffective.

Anyone in the UK could purchase a copy of the book by credit card or

cash from the USA by post or by telephone. The telephone number and

address of American bookshops willing to deliver the book to the UK

were widely advertised in the UK.

32. In the contempt proceedings in the Independent case the Court

of Appeal (Sir John Donaldson MR, Lloyd LJ and Balcombe LJ) announced

on 15 July 1987 (for reasons handed down on 17 July 1987) that it

would reverse the judgment of the Vice-Chancellor and decided

unanimously that such publication could, as a matter of law, amount to

a contempt of court. In his judgment, Sir John Donaldson, Master of

the Rolls, stressed that confidentiality, not official secrecy, was

the central issue in the case. He held, inter alia, that if a court

had prohibited publication of information pending trial which was said

to be confidential, but publication was nevertheless made, there was

no point in having a trial since the cloak of confidentiality could

never be restored. The contempt issue in the present case involved an

interference with the due administration of justice. The application

of the law of contempt being universal, the fact that it was to be

applied in novel circumstances, i.e. to newspapers not party to the

injunction against the applicants, was not a widening of its

application but a new example of its application. Third parties with a

legitimate interest in the injunction could apply to the court for its

modification or apply for clarification if they had doubts whether the

action they contemplated was lawful.

33. In his concurring judgment, Lloyd LJ held, inter alia, as

follows:

"... I would accept that not all acts which are calculated

to interfere with the course of justice will necessarily

ground a charge of contempt. The act must be sufficiently

serious and sufficiently closely connected with the

particular proceedings. But in the present case the conduct

relied on by the Attorney General is not marginal. It is

not a mere prejudging of the issue to be decided in the

particular proceeding. It is not a mere usurpation of the

court's function. It is the destruction, in whole or in

part, of the subject matter of the action itself. The

central issue in the Guardian action is whether The Guardian

should be restrained from publishing confidential information

attributable to Mr. Wright. Once the information has

been published by another newspaper, the confidentiality

evaporates. The point of the action is gone. It is

difficult to imagine a more obvious and more serious

interference with the course of justice than to destroy

the thing in dispute."

34. Balcombe LJ agreed with his colleagues. The Court of Appeal

refused leave to appeal to the House of Lords. No petition for such

an appeal was lodged with the House of Lords itself and no application

was made to the High Court by The Independent, The London Evening

Standard or The London Daily News to modify the interim injunctions

against the applicants.

35. The Sunday Times made it clear that, unless restrained by law,

the second set of extracts from the book would be published on Sunday,

19 July 1987. On 16 July, the Attorney General applied for an

injunction to restrain The Sunday Times from publishing further

extracts from the book. The Attorney General brought his claim to

restrain what he said would be a contempt of court by reason of the

injunctions against the applicants and by reason of the Court of

Appeal's decision in the Independent case.

36. The Vice-Chancellor granted a temporary injunction restraining

publication by The Sunday Times until Tuesday, 21 July 1987. It was

agreed that on Monday, 20 July 1987 the Vice-Chancellor would consider

the claim of the applicants to have the injunctions against them

discharged and that The Sunday Times would (by reason of being

effectively bound by those injunctions because of the Court of Appeal

judgment in the Independent case) have a right to be heard in support

of that claim. He was also to hear the Attorney General's application

for an injunction against The Sunday Times. It was agreed that if the

injunctions against the applicants were discharged, his claim against

The Sunday Times would also fail.

37. The Vice-Chancellor heard argument from 20 to 22 July 1987.

He gave judgment on 22 July as follows:

(i) If there had been a material change of circumstances

since July 1986, he had to consider whether it was now

appropriate to grant injunctions against the applicants.

(ii) There had been "a most substantial change in

circumstances". He regarded as most significant the fact

that the book had been published in the USA and was

available in and had reached the UK.

(iii) The Vice-Chancellor was bound by the principles

laid down by the House of Lords in American Cyanamid Co

v. Ethicon Ltd <1975> AC 396 concerning the grant of

interlocutory injunctions, namely, it is not the court's

function at this intermediary stage to determine complex

questions of law and fact which call for detailed argument

and mature consideration. These matters are for the trial

court to decide. However, if there is an arguable case

that an injunction may be granted at trial, and if neither

side could be adequately compensated in damages after trial,

then whether an interlocutory injunction should be granted

depends on the balance of convenience.

(iv) The Vice-Chancellor held that the Attorney General had

an arguable case under the law of confidence (albeit one that

he strongly doubted was correct), that he might obtain an

injunction against the newspapers at trial even though they

were neither confidants nor aiders and abettors of a

confidant, and even though the information, the publication

of which the Attorney General wished to restrain, was now

known or available to the public as a result of publication

in the USA.

(v) He held that damages would be an inadequate remedy

to compensate the Attorney General if he failed to obtain an

interlocutory injunction but were successful at trial. He

also held that damages would not be a sufficient remedy to

compensate the newspapers for restraints on publication were

they to succeed at trial.

(vi) He then proceeded to consider the balance of convenience.

He held that, weighing all the factors, it was inappropriate

to continue the injunctions. This was because the information

contained in the book was no longer secret and the only public

interest in restraining publication - to deter other members

of the Security Service from seeking to publish their memoirs -

was outweighed by the public interest in freedom of expression

and the freedom of the press in all the circumstances of this

case. He commented as follows:

"The truth of the matter is that in the contemporary

world of electronics and jumbo jets news anywhere is

news everywhere. But whilst the news is international,

the jurisdiction of this court is strictly territorial.

Once the news is out by publication in the United States

and the importation of the book into this country, the

law could, I think, be justifiably accused of being an

ass and brought into disrepute if it closed its eyes to

that reality and sought by injunction to prevent the

press or anyone else from repeating information which

is now freely available to all."

38. The Attorney General immediately appealed and pending that

appeal the injunctions against the applicants, but not against The

Sunday Times, were continued in force.

39. The Court of Appeal (Sir John Donaldson MR, Ralph Gibson LJ

and Russell LJ) heard argument on this matter on 23 and 24 July 1987.

In its judgment of 24 July 1987 the Court of Appeal decided as

follows:

(i) The Vice-Chancellor had erred in law in various

respects.

(ii) Therefore it was appropriate for the Court of Appeal

to exercise its own discretion.

(iii) In the light of the American publication of the book,

it was inappropriate to continue the injunctions in their

original form. However, it was appropriate to vary the

original injunctions to restrain publication in the course of

business of all or part of the book or other statements by or

attributed to Peter Wright on security matters, but to permit

a summary in general terms of his allegations.

40. The Court of Appeal gave leave to all parties to appeal to the

Appellate Committee of the House of Lords.

41. The Appellate Committee of the House of Lords (Lord Bridge,

Lord Brandon, Lord Templeman, Lord Ackner and Lord Oliver) heard

argument from 27 to 29 July 1987. They gave judgment on Thursday,

30 July 1987. They decided, by a majority of 3-2, to continue the

temporary injunctions granted by Mr. Justice Millett and the Court of

Appeal in July 1986. Lord Bridge (the immediate past Chairman of the

Security Commission, the Government body responsible for supervising

aspects of the work of the British Security Service) and Lord Oliver

dissented on the ground that no injunctions should lie against the

applicants because the information was no longer secret. However, the

majority of the Appellate Committee decided that the scope of the

injunctions granted in 1986 should be widened to restrict certain

reporting of what would take place in open court in the further

Australian proceedings, otherwise passages from the book read out in

the Australian courts might be reproduced in English newspapers, thus

circumventing the injunctions. Its written reasons for the judgment

were given on 13 August 1987 (1987 1WLR 1248).

42. Lord Brandon (with whose observations Lord Templeman agreed)

held, inter alia, as follows:

(i) it was of the utmost importance that the injunctions

in issue were interlocutory injunctions, that is temporary

injunctions having effect until the trial of the action only;

continuation of the injunction until trial did not in any

way prejudge the validity of the Attorney General's claim

to final injunctions, its purpose being only to hold the

ring until a just decision on the validity of that claim

could be made;

(ii) before the publication of the book in America the

Attorney General had a strong arguable case for obtaining

at trial final injunctions in terms similar to those of

the temporary injunctions; this was the view taken by

Millett J. and the Court of Appeal and was not really open

to challenge;

(iii) the key issue was whether the publication of the book

in the USA had the effect that the Attorney General no longer

had an arguable claim to permanent injunctions at trial;

although the Attorney General's case for obtaining final

injunctions at trial had been much weakened by the publication

of the book, it remained nevertheless an arguable case;

(iv) in order to enable a court to carry out properly the

exercise of weighing and balancing the public right to freedom

of expression in the press and the public interest in the

protection of the secrecy of the British Security Service,

it was essential that it should have adduced before it the

best possible evidence on the crucial questions which arose

in the case in the form of oral evidence from witnesses

subject to cross-examination; the only way in which it

could thus justly be decided whether the Attorney General's

case, being still arguable, should succeed or fail was by

having the action tried;

(v) if the temporary injunction were discharged now, so

that the newspapers were left free to disseminate generally

the disclosures made in the book, there would be no point

in the Attorney General proceeding to trial; his arguable

case would have been completely destroyed by summary process

at an interlocutory stage and without his ever having had

the opportunity of having it fairly tried on appropriate

evidence;

(vi) if, on the other hand, the temporary injunctions were

continued until trial, the effect would be only to postpone

and not to prevent the exercise by the newspapers of the

rights to publish; although the exercise of such rights would

certainly have been delayed, it was a material factor that

Mr. Wright's disclosures related not to recent events but to

events many years in the past; that being so, a further delay

in the exercise of the newspapers' rights would in no way be

equivalent to a complete denial of those which the Attorney

General might have;

(vii) having regard to the matters in (v) and (vi) above,

the discharge of the temporary injunctions was capable of

causing much greater injustice to the Attorney General than

the continuation of them until trial was capable of causing

to the newspapers; in that situation it was clear that in the

overall interests of justice continuation of the injunctions

until trial was preferable to their discharge.

43. Lord Ackner, the third majority member of the Appellate

Committee, held, inter alia, as follows:

(i) it was common ground and/or accepted by each member

of the Appellate Committee

(a) that the Attorney General had an arguable

case for a permanent injunction; (this had been

conceded by the applicants given the domestic law;)

(b) that damages were a worthless remedy for the

Crown and that, if the interlocutory injunctions were

not continued, the Crown would immediately and

irrevocably lose the prospect of obtaining a permanent

injunction which it might obtain if a trial were to

take place;

(c) that, by contrast to (b) above, the

continuance of the interlocutory injunction was not,

as the Vice-Chancellor had accepted, "a final locking

out of the press"; if successful in the action, the

press would then be able to publish the material which

had no present urgency in that the allegations made in

the book were in a number of respects stale;

(d) that there was a real public interest

concerned with the efficient functioning of the

Security Service and that interest required protection;

this would extend, as was conceded by the applicants,

to the need to restrain any market for the

unauthorised disclosure or use of the confidential

memoirs of Secret Service officers;

(ii) it accordingly followed that, notwithstanding the

publication of "Spycatcher" in the USA, it would be a denial

of justice to refuse to allow the injunctions to be continued

until the action was heard; to refuse to continue the

interlocutory injunctions would result in the "sweeping aside"

of the aforementioned public interest factor without any

trial; the Attorney General would thus have been prematurely

and permanently denied any protection from the courts.

44. Although arriving at a contrary conclusion on the facts of the

case, the minority of the Appellate Committee (Lord Bridge and Lord

Oliver) did not differ substantially from the above approach of the

majority as to the proper test to be applied in determining whether to

continue or discharge the interlocutory injunctions. In particular,

Lord Oliver made clear, inter alia:

(i) that he entertained no doubt whatsoever that the

interlocutory injunctions granted by Millett J. and confirmed

by the Court of Appeal in July 1986 were, in the circumstances

which existed at that time, entirely correct;

(ii) that if, notwithstanding the publication of the book,

an arguable case was made out for the grant of a permanent

injunction at trial, the question would become one of balance

of convenience.

45. The principal respect in which Lord Oliver differed from the

majority of the Appellate Committee was as to the question whether,

following the publication of the book in the USA, there remained an

arguable case for the grant of a permanent injunction at trial. While

noting that the applicants had presented their arguments on the

footing that there remained an arguable case, and while accepting that

the point of law involved was a difficult and novel one, Lord Oliver

took the view that the Appellate Committee had before it all the

material on which to determine the point. Although he stated that he

fully appreciated the point forcefully made in the speeches of the

majority that the question should not now be determined without full

argument at trial, Lord Oliver stated that, in the light of the degree

of public availability of the information in "Spycatcher", he could

not see how it could be successfully argued at trial that the

appellants should be permanently enjoined from publishing such

information. Lord Oliver thus concluded that there no longer existed

any arguable case for a permanent injunction at the trial and that

accordingly the interlocutory injunctions should be discharged.

46. This judgment of the House of Lords terminated the

interlocutory proceedings in the UK.

47. During the interlocutory proceedings in this case the

applicants made submissions to the domestic courts under Article 10 of

the Convention. Account was taken of these submissions as was

demonstrated in the judgment of the House of Lords. Lord Brandon

commented as follows:

"The public right to freedom of expression cannot, even in a

democratic country such as the United Kingdom, be absolute.

It is necessarily subject to certain exceptions, of which the

protection of national security is one. This is expressly

recognised in Article 10 para. 2 of the Convention for the

Protection of Human Rights and Fundamental Freedoms, to which

the United Kingdom has adhered although its provisions have

not been incorporated into our domestic law".

48. Lord Templeman (with whom Lord Ackner agreed) recognised that

the "conflict between the right of the public to be protected by the

Security Service and the right of the public to be supplied with full

information by the press" involved considerations under Article 10 of

the Convention. He reviewed the Convention case-law on freedom of

expression, in particular, The Sunday Times case (Eur. Court H.R.,

judgment of 26 April 1979, Series A No. 30). In terms of the

Convention he found several reasons necessitating the imposition of

injunctions: to prevent damage to national security, i.e. the

Security Service, to deter or prevent any recurrence of publication by

disgruntled public servants of damaging truths and falsehoods abroad,

to protect the reputation or rights of others, to prevent disclosure

of information obtained by a member of the Secret Service in

confidence and to maintain the authority of the judiciary.

49. However, Lord Harwich considered that the imposition of

injunctions would create an "unnecessary fetter on freedom of speech"

and doubted the ability of the English "common law to safeguard the

fundamental freedoms essential to a free society including the right

to freedom of speech which is specifically safeguarded by Article 10

of the Convention".

50. On 24 September 1987 the New South Wales Court of Appeal

delivered its reserved judgment dismissing the Attorney General's

appeal. The Attorney General applied for leave to appeal to the High

Court of Australia against the Court of Appeal's decision. Pending

the hearing the High Court declined to grant temporary injunctions

against publication of the book. Proceedings against newspapers for

injunctions were also brought by the Attorney General in Hong Kong and

New Zealand. In Hong Kong temporary injunctions were granted, but in

New Zealand it was reported in The Independent on 16 December 1987

that the Chief Justice had given judgment against the Attorney General

and permanent injunctions had been refused.

51. In the meantime publication and dissemination of "Spycatcher"

and its contents continued worldwide, not only in the USA (around

715,000 copies were printed and nearly all were sold by October 1987)

and Canada (around 100,000 copies printed), but also in Australia

(145,000 copies printed, half of which were sold within a month of

publication), Ireland (30,000 copies printed and distributed) and

several thousand copies were sent to various European countries from

the USA (80,000 copies to Holland, 10,000 to Germany, 500 to Norway,

2,000 to Malta and 1,000 to Cyprus). From Australia copies were

distributed in Asian countries. Radio broadcasts in English about the

book were made in Denmark and Sweden, and translations of the book

were made in 12 other languages, including Spanish, Catalan, French,

German, Swedish, Italian, Danish, Icelandic, Dutch and Portuguese.

52. Against the background of this wide dissemination of the book,

the substantive trial of the Attorney General's actions against the

applicants lasted several days and took place before Scott J. during

the latter part of November and early December 1987. The Sunday Times

newspaper was also party to these proceedings, in respect of a

determination of the Attorney General's claim against Times Newspapers

Ltd and The Sunday Times' editor, Andrew Neil, for an alleged breach

of confidence, which claim had been initiated by the Attorney General

in a writ issued on 27 October 1987. On 21 December 1987 Scott J.

delivered judgment dismissing the actions and discharging the

injunctions against the applicants ((1988) 2WLR 805).

53. Scott J. held that Mr. Wright owed a duty to the Crown not to

disclose any information obtained by him in the course of his

employment in MI5, that he broke that duty by writing "Spycatcher" and

submitting it for publication, and that the subsequent publication of

the book in July 1987 and its subsequent dissemination amounted to a

further breach, so that the Attorney General would be entitled to an

injunction against Mr. Wright or any agent of his restraining

publication of the book in the UK. He found that the applicants were

not in breach of their duty of confidentiality, created by being

recipients of Mr. Wright's unauthorised disclosures, when they fairly

reported in general terms the litigation in Australia and the

allegations in the book in their respective articles of 22 and 23 June

1986. The Sunday Times on the other hand had published extracts from

the book containing certain material which did not raise questions of

public interest outweighing those of national security. Accordingly it

had been in breach of duty in publishing the first instalment of

extracts from the book on 12 July 1987. However, the Attorney General

was not entitled to an injunction to restrain further serialisation by

The Sunday Times or any other newspaper since the wide publication of

the book abroad had destroyed any secrecy as to the contents.

Nevertheless the judge held that The Sunday Times was liable to

account for the profits accruing to it as a result of the publication

of the first extract. In his judgment he took account, inter alia, of

the defendants' pleadings under Article 10 of the Convention, the

Government's ensuing treaty obligations and the case-law of the

Convention organs, which establishes that the limitation of free

expression in the interests of national security should not be

regarded as necessary unless there is a pressing social need for the

limitation and unless the limitation is proportionate to the

legitimate aims pursued. He found the arguments for press freedom

overwhelming and the Government's desire for absolute protection of

the Secret Service draconian and impracticable once information is

released and easily available abroad. He therefore dismissed the

Attorney General's claim for a permanent injunction to restrain

publication of material from the book, but imposed further temporary

injunctions pending an appeal to the Court of Appeal.

54. On appeal by the Attorney General and a cross-appeal by The

Sunday Times, the Court of Appeal (Sir John Donaldson MR, Dillon and

Bingham LJJ) on 10 February 1988 (the hearings having been held from

18 to 25 January 1988) affirmed the decision of Scott J.. As regards

the reports of 22 and 23 June 1986 in the Observer and The Guardian,

Dillon LJ said:

"In so far as the detail given goes beyond what had

previously been published, I cannot see any detriment

to national security or the public interest, to outweigh

the benefit of free speech and the advantage in the public

interest of restrained and responsible, but adequately

detailed, reports of the Australian proceedings."

55. However, again, the temporary injunctions were continued

pending appeal to the House of Lords.

56. The House of Lords (Lord Keith of Kinkel, Lord Brightman, Lord

Griffiths, Lord Goff of Chieveley and Lord Jauncey of Tullichettle)

also affirmed the decision of Scott J. in a judgment dated 13 October

1988 ((1988) 3WLR 776). Dismissing the appeal by the Attorney General

and the cross-appeal by The Sunday Times, it held as follows:

"(i) That a duty of confidence could arise in contract

or in equity and a confidant who acquired information in

circumstances importing such a duty should be precluded

from disclosing it to others; that a third party in

possession of information known to be confidential was

bound by a duty of confidence unless the duty was

extinguished by the information becoming available

to the general public or the duty was outweighed by a

countervailing public interest requiring disclosure of

the information; that in seeking to restrain the disclosure

of government secrets the Crown must demonstrate that

disclosure was likely to damage or had damaged the public

interest before relief could be granted; that since the

world-wide publication of 'Spycatcher' had destroyed any

secrecy as to its contents, and copies of it were readily

available to any individual who wished to obtain them,

continuation of the injunctions was not necessary; and

that, accordingly, the injunctions should be discharged.

(ii) (Lord Griffiths dissenting) That the articles of

22 and 23 June had not contained information damaging to

the public interest; that the Observer and The Guardian

were not in breach of their duty of confidentiality when

they published the articles of 22 and 23 June 1986; and

that, accordingly, the Crown would not have been entitled

to a permanent injunction against both newspapers.

(iii) That The Sunday Times was in breach of its duty of

confidence in publishing its first serialised extract

from 'Spycatcher' on 12 July 1987; that it was not

protected by either the defence of prior publication or

disclosure of iniquity; that imminent publication of the

book in the USA did not amount to a justification; and

that, accordingly, The Sunday Times was liable to account

for the profits resulting from that breach.

(iv) That since the information in 'Spycatcher' was now

in the public domain and no longer confidential no further

damage could be done to the public interest that had not

already been done; that no injunction should be granted

against the Observer and The Guardian restraining them

from reporting on the contents of the book; and that

(Lord Griffiths dissenting) no injunction should be

granted against The Sunday Times to restrain serialising

of further extracts from the book.

(v) That members and former members of the Security

Service owed a lifelong duty of confidence to the Crown,

and that since the vast majority of them would not disclose

confidential information to the newspapers it would not be

appropriate to grant a general injunction to restrain the

newspapers from future publication of any information on

the allegations in 'Spycatcher' derived from any member or

former member of the Security Service."

57. As regards the reports of 22 and 23 June 1986 in the Observer

and The Guardian Lord Goff said:

"... in so far as the articles went beyond what had

previously been published, I do not consider that the

Judge erred in holding that in the circumstances, the

claim to an injunction was not proportionate to the

legitimate aim pursued."

III. OPINION OF THE COMMISSION

A. Points of issue

58. The following are the points at issue in the present

application:

- whether the interlocutory injunctions imposed on the applicant

newspapers by Mr. Justice Millett on 11 July 1986 were in violation of

the applicants' freedom of expression ensured by Article 10 (Art. 10)

of the Convention;

- whether the refusal to discharge these injunctions by the

House of Lords on 30 July 1987 was in further violation of the

applicants' rights under 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 complaint

under Article 10 (Art. 10);

- whether the interlocutory injunctions also constituted

discrimination in violation of Article 14 of the Convention read in

conjunction with Article 10 (Art. 14+10).

B. As regards Article 10 (Art. 10) of the Convention

59. 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. This Article shall not prevent States from

requiring the licensing of broadcasting, television or

cinema enterprises.

2. The exercise of these freedoms, since it carries

with it duties and responsibiities, may be subject to

such formalities, conditions, restrictions or penalties

as are prescribed by law and are necessary in a

democratic society, 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."

60. There are two separate periods to be considered in the present

case: the first period ran from Mr. Justice Millett's judgment of

11 July 1986 until 30 July 1987, when the House of Lords refused to

discharge the interlocutory injunctions against the applicants,

despite the publication of "Spycatcher" in the USA on 14 July 1987.

Thereafter the second period ran until the House of Lords' judgment of

13 October 1988, finally refusing the Attorney General's application

for permanent injunctions against the applicants. Certain elements of

the analysis of the issues in the present case are common to the two

periods in question, namely whether the interlocutory injunctions

imposed on the applicants constituted an interference with the

applicants' 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. The

Commission will examine these elements together. However, apart

from general considerations, different elements arise regarding the

question of necessity, i.e. whether the purported interference

corresponded to a pressing social need and was proportionate to the

pursuit of a legitimate aim throughout the two periods, because the

facts of the case radically altered in July 1987. The Commission

will, therefore, separate this aspect of the case for the two periods.

a) Interference with freedom of expression

61. It is undisputed in the present case that the interlocutory

injunctions imposed on the applicants in varying forms as of 11 July

1986 constituted an interference with the applicants' freedom of

expression ensured by Article 10 para. 1 (Art. 10-1) of the Convention.

These injunctions prevented the applicants from, inter alia,

publishing further details about the allegedly unlawful conduct of

the British Secret Service described in the book "Spycatcher", or

further information obtained from the book's author, Peter Wright, a

retired member of that Service (paras. 21-22 above). The Commission

finds that the gagging effect of the injunctions, imposing prior

restraint on further publication of matters of legitimate public

interest, constituted an interference with the applicants' freedom of

expression with wide repercussions. The Commission must examine

whether that interference was justified under Article 10 para. 2

(Art. 10-2) of the Convention.

b) Prescribed by law

62. Any interference with freedom of expression must be prescribed

by law. The word "law" in the expression "prescribed by law" covers

not only statute but also unwritten law such as the law of contempt of

court or breach of confidence in English common law. Two requirements

flow from this expression, that of the adequate accessibility and

foreseeability of law, to enable the individual to regulate his

conduct in the light of the foreseeable consequences of a given action

(Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A No.

30, pp. 30-31, paras. 47-49).

63. The applicants have contended that the imposition of temporary

injunctions in the present case was not "prescribed by law" within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention, the

relevant domestic law being insufficiently foreseeable. The

Government refuted this contention. They submitted that the relevant

principles of law concerning the grant of interim injunctions pending

trial of an action were clear and well-established.

64. The Commission notes that the relevant domestic law in the

present case concerned not only that of interim injunctions, but also

the law of contempt of court and breach of confidence, all being

aspects of English common law, i.e. non-statutory law. At the outset

the Government were concerned to prevent the publication of

information directly or indirectly obtained from Peter Wright, a

retired member of the British Secret Service, who, in breach of his

professional duty of confidence, had divulged information about that

Service.

65. A legal dispute arose between the Government, represented by

the Attorney General, and the applicants over whether, inter alia, a

third party, such as a newspaper, could be bound by that duty of

confidence and thereby prevented, by permanent injunction, from

publishing information obtained from Mr. Wright. It seems that the

applicants had conceded in the interlocutory proceedings that, for the

purposes of domestic law, the Attorney General had an arguable point,

albeit unfounded on the merits. To protect the Attorney General's

interests as a litigant and maintain the procedural status quo until

the trial on the merits, the law of interim injunctions, as set out in

the case of American Cyanamid Co. v. Ethicon Ltd <1975> AC 396, was

applied in this case (see para. 37 (iii) above). Once the interim

injunctions were imposed on the applicant newspapers the whole of the

British media was bound by them for as long as they lasted by virtue

of the law of contempt of court (see paras. 32-34 above).

66. The Commission is of the opinion that a rule which authorises

prior restraint of a publication must specify the criteria for such a

restriction with sufficient precision to be compatible with the

Convention requirement "prescribed by law". Having noted that even

after the publication of the book in the USA the English judges,

including the Law Lords, were not able to agree on what importance

should be attached to the availability of the information contained in

"Spycatcher" on the open market, the Commission queries whether the

different aspects of common law applied in the present case were

entirely clear. However, the Commission finds that the dominant legal

principles in the present case were those concerning the grant of

interim injunctions. It also finds that they were well-established in

English common law, at least since 1975 in the aforementioned American

Cyanamid case. They can therefore be said to have been adequately

foreseeable. The differences between the parties in the present case

have turned principally on the necessity of imposing the interim

injunctions, not on the absence of any legal authority for doing so.

In these circumstances, the Commission concludes that the interference

with the applicants' freedom of expression by interim injunctions

imposed on them from 11 July 1986 until 13 October 1988 was

"prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2)

of the Convention.

c) Legitimate aim

67. 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.

68. It is not disputed by the parties that the central purpose of

the interlocutory injunctions in the present case has been to protect

the position of the Attorney General as a litigant pending the trial

of the confidentiality claim on the merits. The Commission considers

that such a purpose falls within the scope of the legitimate aim of

maintaining the authority and impartiality of the judiciary, within

the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

69. Indirectly the imposition of the original injunctions of Mr.

Justice Millett on 11 July 1986 was also intended to serve the purpose

of protecting national security. Mr. Justice Millett considered that

one of the elements to be tested at the eventual trial was whether the

efficacy of the British Secret Service would be impaired if its

officers felt free to divulge confidential matters (para. 19 above).

The Commission considers that this, in principle, falls within the

scope of the legitimate aim of protecting the interests of national

security, within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention. However, the Government have not directly relied on this

aspect of justification for the purposes of the proceedings before the

Commission.

d) Necessary in a democratic society

70. The key issue in the present case is whether it was necessary

in the circumstances to impose temporary injunctions on the applicants

at any stage.

71. 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.

72. 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).

73. 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 maintenance of the authority of the

judiciary, the protection of national security being a background

element (see paras. 67-69 above).

74. The Court has acknowledged that the margin of appreciation

available to States in assessing the pressing social need to protect

certain aspects of national security is a wide one (Eur. Court H.R.,

Leander judgment of 26 March 1987, Series A No. 116, p. 25, para. 59).

The Court has also held that the expression "maintaining the authority

and impartiality of the judiciary" not only refers to maintaining

public confidence in the ability of the machinery of justice to

determine legal rights and obligations and to settle disputes, but

also encompasses the protection of the rights of litigants (Eur. Court

H.R., aforementioned Sunday Times judgment, p. 34, paras. 55-56).

However, the State's margin of appreciation in this area is more

restricted as the notion of the "authority" of the judiciary has a

more objective basis, reflecting a fairly substantial measure of

common ground in the domestic law and practice of the Contracting

States (ibid, pp. 35-37, para. 59).

75. 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).

76. The Commission must now examine whether, in the circumstances

of the present case, there was a pressing social need to issue and

maintain the interlocutory injunctions against the applicants and

whether they were proportionate to the aim pursued.

77. The applicants contended that there was no pressing social

need for any injunction. They submitted, inter alia, that their

reporting in June 1986 was fair and brief on a subject of major public

importance, namely, allegations of misconduct by the Security

Service. Most of these allegations were already public knowledge, the

Government having failed to prevent previous publication and the

confidentiality apparently necessary for the effective operation of

that Service having been broken (para. 14 above). The application of

private litigation principles through the American Cyanamid case and

its test of the "balance of convenience" fell short of the

Convention's necessity test, and the need to balance the public's

right to be informed against the unrealistic confidentiality claim by

the Attorney General.

78. The Government replied, inter alia, that the temporary

injunctions imposed by Mr. Justice Millett on 11 July 1986 were not

concerned with the articles which the applicants had published but

with further reports which they might wish to make. The fact that

much of the information was already in the public domain ignored this

new source of information provided by an insider, namely, Mr. Wright

and his book "Spycatcher". It was his authoritative role as a retired

member of the Security Service, his breach of confidence with its

repercussions on the effective operation of the Service, which

concerned the Government. There was a clear need to preserve the

subject matter of the case for mature determination of the issues at

the trial. The applicants had even conceded that under domestic law

the Attorney General had an arguable claim to a permanent injunction

against them based on the law of breach of confidence. The imposition

of merely temporary injunctions until trial justifiably and

proportionately responded to the pressing social need of maintaining

the authority of the judiciary, within the meaning of Article 10 para.

2 (Art. 10-2) of the Convention.

aa) Necessity: the period 11 July 1986 until 30 July 1987

Opinion of MM. Frowein, Busuttil and Weitzel

79. In analysing the necessity issue in the present case it is

essential to keep in mind the nature of the proceedings in question.

We note that the Attorney General's claim was based on the rules

concerning breach of confidence and it was the purpose of the

temporary injunctions imposed on the applicants to protect the subject

matter of the trial until it could be fully examined by the competent

courts. We accept that the imposition of a temporary injunction to

protect the interests of the parties until the full trial, which trial

is decisive for the question whether or not material may be published,

must, under normal circumstances, be considered necessary in a

democratic society for maintaining the authority of the judiciary

within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention. To find otherwise would be to deprive the trial of its

purpose. However, the need for a temporary injunction must be

established with particular clarity where it is the Government which

rely on a private law concept of a breach of confidence to restrict

the dissemination of information which is of considerable interest to

the public, as in the present case. Whilst a binding rule of

confidentiality between private persons is, in principle, compatible

with Article 10 (Art. 10) of the Convention, since this Article

(Art. 10) guarantees individual rights vis-à-vis the State, a stricter

test of necessity must be applied where the Government seek to

restrict press freedom by that same rule.

80. We note that the primary concern of the English courts in the

present case was not the protection of national security, but the

protection of confidentiality. This had important consequences for

the criteria which they applied: Whilst the applicants had argued

that their short reports published on 22 and 23 June 1986 did not

contain any substantial information which had not already been

published in books, newspapers or on television, this was not seen as

particularly relevant by the judges concerned. Indeed, at first

instance Mr. Justice Millett considered that the key issue was whether

the information to be published derived directly or indirectly from

Mr. Wright, not whether it had already been published elsewhere

(transcript of judgment of 11 July 1986 p. 15 B-F). The Court of

Appeal in its judgment of 25 July 1986 considered the earlier

publication of the material but found, nevertheless, that, as there

was no evidence that the prior publication of Mr. Wright's remarks had

been authorised by the Government, the essential confidentiality of

the material had not been destroyed (transcript of judgment of 25 July

1986 p. 15 A-D). Although falling outside the period under

consideration, the majority judgment of the House of Lords on 30 July

1987 also clearly demonstrates the effect of the relevant domestic

law. The majority of the House of Lords found that even the

publication of the book in the USA and its importation into and

availability in the UK did not fundamentally alter the arguability of

the Attorney General's claim for breach of confidence. This shows

that the decisive test for the English courts was not whether reasons

of national security justified the injunctions or even whether such

reasons would be at issue in the trial. Only the application of the

general principles relating to breach of confidence was substantially

at issue throughout these proceedings. We are therefore of the

opinion that the confidentiality rule applied on the "balance of

convenience" by these courts fails the necessity test laid down in

Article 10 para. 2 (Art. 10-2) of the Convention.

81. We have also examined the newspaper reports printed in the

Observer on 22 June 1986 and The Guardian on 23 June 1986 which gave

rise to the litigation in question. We observe that these articles

were short, objective and fair. They were based on information,

which, although confirmed by undisclosed confidential sources, appears

to have been already disclosed to the public in television interviews

given by Mr. Wright and in books on the Secret Service written by

Chapman Pincher and others (see para. 14 above). The Government had

taken no steps to prevent this earlier disclosure of information by

Mr. Wright. Moreover, in view of the previous publication of the

information in question, we consider that the Government have not

established that there was a pressing social need for imposing the

interlocutory injunctions on the applicants. Accordingly, we are of

the opinion that it has not been established that the injunctions

imposed by Mr. Justice Millett on 11 July 1986, and confirmed by the

Court of Appeal on 25 July 1986, were necessary, within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention.

Opinion of Mrs. Thune, MM. Rozakis and Loucaides

82. In considering the necessity issue in the present case for the

period 11 July 1986 until 30 July 1987, we keep in mind the nature of

the proceedings in question: The Attorney General was seeking through

these proceedings to protect the confidentiality of the information

received by a retired member of the British Secret Service during his

employment, such confidentiality being essential for the efficacy of

this Service. The purpose of the temporary injunctions imposed on the

applicants was the protection of the subject matter of the trial until

it could be fully examined by the competent courts.

83. The imposition of a temporary injunction to protect the

interests of the parties until the full trial may be considered

necessary in a democratic society for maintaining the authority of the

judiciary, within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention. Furthermore the imposition of a temporary injunction in

order to maintain the essential confidentiality of the State Secret

Service pending the final determination of related issues by the

courts may, in principle, be considered necessary in a democratic

society in order to protect national security. However, such a

restriction on freedom of expression and the right to receive and

impart information must be balanced against the public interest in

receiving the information in question. Moreover, the need for any

such temporary injunction should be established with particular

clarity and certainty where it is the Government which seek to

restrict the dissemination of information which is of considerable

interest to the public, as in the present case.

84. We must examine whether the interference was necessary in a

democratic society within the meaning of Article 10 para. 2 (Art. 10-2)

of the Convention. This implies, inter alia, that a pressing social

need must be demonstrated with regard to the temporary injunctions

imposed on the applicants. We are of the opinion that the

injunctions imposed by Mr. Justice Millett on 11 July 1986,

confirmed by the Court of Appeal on 25 July 1986, did not meet in a

proportionate manner any pressing social need either to maintain the

authority of the judiciary, or to protect national security, in the

circumstances of the present case, account being taken of the

following factors:

a) The confidentiality which was supposed to have been

protected had been substantially destroyed by previous publications

such as the Chapman Pincher books, the television interviews with

Mr. Wright and the Australian proceedings. In this respect it should

be noted that the Government took no action against these previous

disclosures and publications in the UK.

b) The injunctions could not effectively preserve the status

quo, given the inevitable leakage of the confidential information in

question from other sources, such as the Australian proceedings and

the previous publications.

c) The reports printed in the Observer on 22 June 1986 and The

Guardian on 23 June 1986 which gave rise to the litigation in question

were short, objective and fair. They were based on information,

which, although confirmed by undisclosed confidential sources, was

derived from the material mentioned above in point a). Moreover, the

information concerned events arising years before, which by 1986 do

not appear to have posed any major threat to national security.

d) The Attorney General's claim and the imposition by the

courts of the injunctions in question failed to give sufficient weight

to the public's right to know about the workings of Government and the

duty of the press to denounce alleged misconduct by a governmental

authority. In our view, considerable emphasis must be placed on the

public's interest in this information.

85. In balancing the conflicting interests at issue in this case,

we consider that the Government have failed to establish a pressing

social need for the temporary injunctions imposed on the applicants at

the outset. We are, therefore, of the opinion that the interference

in the present case was not necessary in a democratic society within

the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

Conclusion

86. The Commission concludes, by 6 votes to 5, that there has been

a violation of Article 10 (Art. 10) of the Convention in respect of

temporary injunctions imposed on the applicants for the period 11 July

1986 to 30 July 1987.

bb) Necessity: the period 30 July 1987

until 13 October 1988

87. The Commission notes that by the end of July 1987 extensive

details about the contents of "Spycatcher" had been divulged in major

newspapers in Britain, Australia and the USA (paras. 25 and 26 above).

The Sunday Times published extracts of the book on 12 July 1987 and

the book itself went on sale in the USA on 14 July 1987 where it

became an instant best seller. As of April 1987 the applicants

unsuccessfully applied for discharge of the interlocutory injunctions

originally imposed in July 1986 in view of the significant change in

circumstances.

88. The applicants contended that the perpetuation of these

injunctions by the House of Lords on 30 July 1987 and by subsequent

courts until 13 October 1988 was a wholly disproportionate measure

corresponding to no pressing social need by that time. The Government

persisted in their submission that the continuation of the temporary

injunctions pending the final negative determination of the merits of

the Attorney General's claim by the House of Lords on 13 October 1988

was necessary for the maintenance of the authority of the judiciary,

within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

89. The Commission is unable to accept the Government's

proposition. It was clear by the time the book was published in the

USA that the confidentiality of the information held by Peter Wright

had been destroyed. The Commission observes that the Government made

no attempt to prevent the book's importation into the UK. The

Commission fails to see a pressing social need to prevent the British

public reading about something which the rest of the world was free to

read by then and which concerned a matter of major interest to them.

Moreover, the argument concerning the merely temporary nature of the

injunctions loses its cogency when account is taken of the fact that

the proceedings in question took over two years and the fact that the

evidence upon which the House of Lords based its decision on the

merits in October 1988 was substantially available at the outset in

July 1986 and fully available by July 1987.

90. In these circumstances the Commission is of the opinion that

the refusal to discharge the interlocutory injunctions against the

applicants as of 30 July 1987 was not necessary and met no pressing

social need to maintain the authority and impartiality of the

judiciary within the meaning of Article 10 para. 2 (Art. 10-2) of

the Convention.

Conclusion

91. The Commission concludes, by a unanimous vote, that there has

been a violation of Article 10 (Art. 10) of the Convention in respect of

temporary injunctions imposed on the applicants for the period 30 July

1987 to 13 October 1988.

C. As regards Article 13 (Art. 13) of the Convention

92. Article 13 (Art. 13) provides:

"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."

93. The applicants have contended that the House of Lords in its

judgment of 30 July 1987 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 Article 10

(Art. 10) of the Convention. The Government contended that just as

Article 13 (Art. 13) of the Convention does not guarantee a remedy by

which legislation can be controlled as to its conformity with the

Convention, so too Article 13 (Art. 13) cannot be interpreted as

guaranteeing a remedy against the decision of the highest court in

the domestic legal system which is allegedly in breach of a

substantive Article of the Convention.

94. 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.

Conclusion

95. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 (Art. 13) of the Convention.

D. As regards Article 14 (Art. 14) of the Convention

96. Article 14 (Art. 14) provides:

"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."

97. The applicants have contended that as a result of the House of

Lords' judgment of 30 July 1987 the applicants' rights and those of

their readers under Article 10 (Art. 10) of the Convention could not

be enjoyed without discrimination. People in the USA and European

countries could purchase and read freely distributed copies of

"Spycatcher" whereas those in the UK most closely affected by its

contents could not. Furthermore those people in the UK who had "the

necessary money and knowhow" could purchase "Spycatcher" from

American retailers. The applicants therefore allege that there has

been discrimination on the basis of national or social origin and

discrimination based on property, wealth and the acquisition of

privileged knowledge.

98. The Government contended that the applicants were in the same

position as other newspaper publishers or other sections of the media

in the UK; they were not subject to any different treatment under the

law than others in a comparable position. Moreover the applicants

were not responsible for publishing, distributing or marketing

"Spycatcher". Accordingly they could not claim to be victims of

discriminatory treatment with regard to the sale or distribution of

the book. Nor can the Convention organs entertain an "actio

popularis" concerning the ability of members of the UK public to

purchase the book. The Government submitted, therefore, that the

applicants did not suffer any discrimination contrary to Article 14

(Art. 14) of the Convention.

99. 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 on behalf of the UK public who may have had difficulties

purchasing "Spycatcher" at the material time. It also agrees with the

Government's contentions that the applicants were not subject to any

different treatment under the domestic law than others in a comparable

position. The Government's liability under the Convention is limited

to its jurisdiction. Within the UK the whole of the British media was

bound by the House of Lords' judgment of 30 July 1987, by virtue of

the law of contempt of court, to refrain from publishing details of

the contents of "Spycatcher". 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

100. The Commission concludes, by a unanimous votes, that there has

been no violation of Article 14 (Art. 14) of the Convention.

E. Recapitulation

101. The Commission concludes, by 6 votes to 5, that there has been

a violation of Article 10 (Art. 10) of the Convention in respect of temporary

injunctions imposed on the applicants for the period 11 July 1986 to

30 July 1987 (para. 86).

102. The Commission concludes, by a unanimous vote, that there has

been a violation of Article 10 (Art. 10) of the Convention in respect of

temporary injunctions imposed on the applicants for the period 30 July

1987 to 13 October 1988 (para. 91).

103. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 (Art. 13) of the Convention (para. 95).

104. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 14 (Art. 14) of the Convention (para. 100).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Concurring opinion of Sir Basil Hall in respect of the period

30 July 1987 until 13 October 1988

While I am in agreement with the Commission that there was a

violation of Article 10 of the Convention in the maintenance of

interim injunctions until 13 October 1988, when the House of Lords

gave their opinions that permanent injunctions should not be ordered,

I reach that conclusion on somewhat different grounds:

The only effective remedy available to the Government of the

United Kingdom was an action seeking an order preventing publication

of information obtained in breach of an obligation of confidentiality.

As the opinion of the minority of the Commission indicates, it was

proper, in order to maintain the authority of the judiciary, for the

Court to impose temporary injunctions to be effective until the trial

of the action brought on behalf of the Government. It was accepted

that the Government had an arguable case. But for such an interim

injunction, a judgment of the Court on the merits would, if in the

Government's favour, have had no practical effect. In circumstances

such as these interim injunctions are necessary to maintain the

authority of the judiciary.

Where such an order restricting publication pending a hearing

on the merits is made, the effect is to restrict the right of freedom

of expression given by Article 10 of the Convention. The national

authorities then have a duty to ensure that the restriction is limited

in duration, and, accordingly, that the hearing on the merits takes

place expeditiously.

The proceedings in this case were instituted on 27 June 1986.

The hearing at first instance on the merits took place in November and

December 1987. The appeal to the Court of Appeal was decided in

February 1988. The opinions of the House of Lords were delivered on

13 October 1988, a period of more than two years after the initial ex

parte interim injunctions.

Comparison may be made with the description of the domestic

proceedings in The Sunday Times case (Eur. Court H.R., judgment of

26 April 1979, Series A No. 30 pp. 16-25 paras. 22-34): A writ

claiming an injunction against publication was issued on 12 October

1972. The final decision on the merits - the judgment of the House of

Lords - was delivered on 18 July 1973, nine months later. Other

instances of speedy disposal of comparable cases can be found in other

Law Reports.

In this case no effort appears to have been made to expedite

a hearing on the merits. When the House of Lords delivered their

opinions on the application to discharge the interim injunctions on

13 August 1987, Lord Brandon remarked :

"For obvious reasons that trial should have taken place as

soon as possible, it has already been delayed far too long."

In my view that was indeed so. Because of that delay, for

which the United Kingdom cannot escape responsibility, the freedom of

newspapers to impart information and the freedom of the public to

receive information about the "Spycatcher" case was restricted for a

period which cannot be justified. There was, accordingly, a violation

of Article 10 of the Convention.

Partly dissenting opinion of MM. Nørgaard, Jörundsson,

Schermers, Danelius and Sir Basil Hall

We found ourselves unable to agree with the finding of the

majority in paras. 79-86 above that there has been a violation of

Article 10 of the Convention in respect of temporary injunctions

imposed on the applicants for the period 11 July 1986 to 30 July 1987.

Despite the fact that certain allegations in the newspaper

reports printed in the Observer on 22 June 1986 and The Guardian on

23 June 1986, which gave rise to the litigation in question, had

apparently already been made public, the applicants have conceded that

the articles were written on the basis of information which they had

obtained from undisclosed confidential sources. In these

circumstances, although the reports were short and fair, we consider

that the Government had sufficient reason to believe that the

applicants had access to further confidential information directly or

indirectly obtained from Mr. Wright about the British Secret Service,

the publication of which information the Government were seeking to

prevent in Australia and elsewhere. This led to the Government's

initiative to apply for temporary injunctions against the applicant

newspapers pending the trial of the substantive claim for permanent

injunctions against them. We consider that in July 1986 the Attorney

General, on behalf of the Government, could be said to have had an

arguable claim for permanent injunctions against the applicants. We

also consider that the object of this claim, namely, preventing the

publication of confidential information about the operation of the

Secret Service, would have been destroyed if the applicants had been

allowed to continue publication of Mr. Wright's allegations about the

misconduct of the Secret Service before the trial on the merits. This

created a conflict between two fundamental rights, i.e. the right of

the press to impart information as quickly as possible on the one

hand, and, on the other hand, the right of the Attorney General to

have a legal dispute decided by a court rather than by a unilateral

act of the opposing party.

Unlike the majority of the Commission, we are of the opinion

that the grant of interlocutory injunctions by Mr. Justice Millett on

11 July 1986 was justified. Although the role of the press in a

democratic society is to keep the public informed of matters of public

interest, nevertheless account must be taken of the temporary nature

of the injunctions pending trial and the fact that the interests of

the plaintiff, the Attorney General as litigant, could only be

effectively protected by temporary injunctions on further publication

rather than by damages. In these circumstances we are of the opinion

that the grant of interlocutory injunctions by Mr. Justice Millett on

11 July 1986 was necessary and met, with due proportion, the pressing

social need of maintaining the authority and impartiality of the

judiciary, which notion under Article 10 para. 2 of the Convention

encompasses the rights of litigants. We are of the view that this

need continued until July 1987.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

27.01.88 Introduction of the application

03.02.88 Registration of the application

Examination of admissibility

07.10.88 Commission's deliberations and

decision to invite the parties to

submit their written observations

on admissibility and merits

27.01.89 Government's observations

25.04.89 Applicants' reply

09.05.89 Commission's deliberations and

decision to hold a hearing.

Application joined to Application

No. 13166/87

05.10.89 Hearing on admissibility and merits,

the parties being represented as

follows:

Government:

Mr. M. Wood, Government Agent

Sir Patrick Mayhew, QC, MP, Attorney

General, Counsel

Mr. N. Bratza, QC, Counsel

Mr. P. Havers, Counsel

Mrs. S. Evans, Home Office

Mrs. S. Marsh, Legal Secretariat

to the Law Officers.

Applicants:

Mr. D. Browne, Counsel

Mrs. J. McDermott, Solicitor

Miss J. Braybrook, Solicitor

05.10.89 Commission's deliberations and

decision to declare the application

admissible.

Application disjoined from

Application No. 13166/87

Examination of the merits

08.11.89 Parties invited to submit further

information and written observations

on the merits

15.12.89 Information submitted by the

applicants

08.01.90 Government's observations

21.02.90 Applicants' observations

02.07.90 Government's further observations

03.07.90 Commission's deliberations on the

merits and final votes

09.07.90 Commission's deliberations on the

text of its Article 31 Report

12.07.90 Adoption of Report

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THE OBSERVER LTD AND OTHERS ; GUARDIAN NEWSPAPERS LTD AND OTHERS v. THE UNITED KINGDOM

THE OBSERVER LTD AND OTHERS ; GUARDIAN NEWSPAPERS LTD AND OTHERS v. THE UNITED KINGDOM