Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13490/88

by G.S.

against the United Kingdom

The European Commission of Human Rights sitting in private on

9 October 1989, the following members being present:

MM. C.A. NØRGAARD, President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

M. C.L. ROZAKIS

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 October 1987

by G.S. against the United Kingdom and registered on 6 January 1988

under file No. 13490/88;

Having regard to:

- reports provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the Commission's decision of 7 October 1988 to bring the

application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government

on 27 January 1989 and the observations in reply submitted

by the applicant on 26 April 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom, born in 1938

and resident in Stoke-on-Trent. He is a Member of the European

Parliament by profession.

The facts, as submitted by the parties, may be summarised as

follows:

A former member of the British Secret Services, Mr. Peter

Wright, wrote a book called "Spycatcher" in which he disclosed some of

the internal workings of the Secret Services based on classified and

sensitive information to which he had access during his employment.

His intention was to publish the book in Australia but the Attorney

General of the United Kingdom brought proceedings in Australia to

prevent publication of the book. Various British newspapers,

including the Observer, Guardian and Sunday Times, sought to inform

their readers about the book and the Australian court proceedings.

However, the Attorney General obtained injunctive relief to restrain

such publication. These interlocutory proceedings terminated with a

decision of the House of Lords on 30 July 1987, the reasons being

delivered in judgment on 13 August 1987. The House of Lords granted

temporary injunctions pending trial of the substantive issues in the

United Kingdom, which injunctions prohibited British newspapers from

"1. disclosing or publishing or causing or permitting to

be disclosed or published to any person any information

obtained by Peter Maurice Wright in his capacity as a

member of the British Security Service and which they know,

or have reasonable grounds to believe, to have come or been

obtained, whether directly or indirectly, from the said

Peter Maurice Wright;

2. attributing in any disclosure or publication made by

them to any person any information concerning the British

Security Service to the said Peter Maurice Wright whether

by name or otherwise."

The injunctions also contained the following provisos:

"1. this Order shall not prohibit direct quotation of

attributions to Peter Maurice Wright already made by

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

programme or programmes broadcast by Granada Television;

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

disclosure or publication of any judgment given in open

court in the New South Wales action No. 4382 of 1985;

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

fair and accurate report of proceedings in

(a) either House of Parliament in the United Kingdom

whose publication is permitted by that House; or

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

Before the Commission the applicant objected to the second

proviso which amended earlier temporary injunctions allowing the

reporting of information disclosed in open court in the Australian

proceedings unless its disclosure was prohibited there. The intention

of the House of Lords in limiting the reporting of the Australian

proceedings was to ensure that the interlocutory injunctions were not

circumvented by the publication of any extracts from "Spycatcher"

which might have been read out in open court in Australia on the

pretext of reporting legal proceedings.

There was in fact extensive reporting of the remaining

Australian proceedings in the British press. These proceedings

consisted of the hearing of the Court of Appeal of New South Wales

from 27 July until 31 July 1987 and its judgment of 24 September 1987

dismissing the Attorney General's appeal, which decision was upheld by

the High Court of Australia on 2 June 1988, after having heard the

case from 8 until 10 March 1988. During these proceedings no attempt

was made to read out parts of "Spycatcher" in open court. In the

meantime the substantive trial of the Attorney General's application

for permanent injunctions against The Observer and The Guardian took

place before the English High Court during the latter part of November

and early December 1987. On 21 December 1987 Scott J. dismissed the

actions, discharged the injunctions against these two newspapers, but

found that The Sunday Times had been in breach of duty for publishing

an extract from "Spycatcher" on 12 July 1987. This decision was

upheld by the Court of Appeal on 10 February 1988 and the House of

Lords on 13 October 1988. Although Scott J. and the Court of Appeal

maintained the temporary injunctions pending completion of the English

appeal proceedings, the Government contended that in effect they

restored the original proviso of the temporary injunctions which

permitted the unrestricted reporting of the Australian proceedings.

Thus the House of Lords' proviso of 30 July / 13 August 1987 had no

effect on the reporting of the Australian Court of Appeal hearing from

27 to 31 July 1987 and had been effectively removed by the English

Court of Appeal in February 1988 before the High Court of Australia

heard the final appeal in that country in March 1988. The applicant

maintained, however, that the House of Lords' proviso had the effect

of restraining the newspaper reporting of the Australian proceedings.

"Spycatcher" had been published in the United States of

America in July 1987 and thereafter throughout the world, including

many countries in Western Europe. No ban on the importation of the

book was imposed by the United Kingdom Government.

COMPLAINTS

The applicant complained that he was a victim of a violation

of Article 10 of the Convention, in particular his right to receive

information regardless of frontiers, as regards the proviso imposed by

the House of Lords in July/August 1987 limiting English newspaper

reporting of the Australian "Spycatcher" proceedings to the

"disclosure or publication of any judgment given in open court". He

contended that the honest reporting of open court proceedings could

not have posed a threat to national security, territorial integrity or

public safety, especially as the book itself was readily available in

the United Kingdom. Nor could it have posed a threat to the other

legitimate interests protected by Article 10 para. 2 of the

Convention. He stated that he had no domestic remedy available to him

to challenge the House of Lords' decision. He stressed that it was

the effective censorship on the reporting of the Australian court

proceedings about which he complained.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 October 1987 and

registered on 6 January 1988.

After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

7 October 1988. It decided, in accordance with Rule 42 para. 2 (b) of

its Rules of Procedure, to give notice of the application to the

respondent Government and to invite the parties to submit their

written observations on admissibility and merits. The Government's

observations were submitted on 27 January 1989, to which the applicant

replied on 26 April 1989.

THE LAW

The applicant has complained of the interim injunction imposed

by the House of Lords in its decision of 30 July / 13 August 1987,

which purportedly limited newspaper reporting of the Australian

"Spycatcher" proceedings to the disclosure or publication of any

judgment given in open court. He claimed thereby to be a victim of a

violation of Article 10 (Art. 10) of the Convention, the relevant part

of which reads as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers ....

2. The exercise of these freedoms, since it carries with

it duties and responsibiities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society

... for the protection of ... the rights of others, ... or

for maintaining the authority ... of the judiciary."

The applicant contended that the aforementioned measure was

intended to restrain reporting of the Australian proceedings and to

intimidate the British press into publishing incomplete reports about

them. He thereby was unable to receive full information on these

matters. He claimed that it cannot have been justified to prevent

extracts of the book reaching the public as the whole book was easily

available to anyone who wished to buy it from abroad. Whilst there

may be millions of other British newspaper readers whose freedom of

expression was thus abrogated, the applicant submitted that his

complaint is not an actio popularis, for he is speaking for himself in

defence of his own Article 10 (Art. 10) rights. He submitted that the

interference with his freedom of expression could not be justified,

the full, honest reporting of the Australian proceedings representing

no threat to the interests protected by the second paragraph of

Article 10 (Art. 10) of the Convention.

The Government replied that the injunction imposed by the

House of Lords did not restrict bone fide reporting of the Australian

proceedings, but only the repetition of verbatim extracts of

"Spycatcher" which might have been read out in open court. This was

borne out by the continued extensive coverage of the Australian

proceedings in the British press at the material time. As it turned

out, the House of Lords' reporting proviso had no practical incidence

because it was issued too late to restrict reporting of the hearing

before the Court of Appeal of New South Wales and had been lifted by

the English Court of Appeal before the final hearing was held in the

High Court of Australia. The Government considered that in these

circumstances the applicant could not be considered to be a victim of

a violation of Article 10 (Art. 10) of the Convention as he had not been

remotely or directly affected by the House of Lords' decision. There

was no evidence that the applicant or any other member of the British

newspaper reading public, was denied information about the Australian

proceedings. Alternatively, the Government submitted that, if there

had been an interference with the applicant's freedom of expression,

it was prescribed by law and necessary in a democratic society for the

protection of the rights of others and/or for maintaining the

authority of the judiciary, within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

The Commission has examined the particular facts of the case

and notes that the House of Lords' proviso in question had no

practical incidence on the reporting of the Australian "Spycatcher"

proceedings. If the applicant had needed details about the book he

could have obtained it himself for, as he acknowledges, it was readily

available, no ban on its importation into the United Kingdom having

been imposed by the Government. The Commission finds that the

applicant has not substantiated his claim that there has been an

interference with his freedom of expression ensured by Article 10

para. 1 (Art. 10-1) of the Convention. In these circumstances the Commission

concludes that the application is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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G.S. v. THE UNITED KINGDOM

G.S. v. THE UNITED KINGDOM

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