PARTLY DISSENTING OPINION OF JUDGE PEKKANEN

I regret that I am unable to agree with the majority of the Court that there was no violation of Article 10 (art. 10) of the Convention on account of the temporary injunctions binding on the applicants in the period from 11 July 1986 to 30 July 1987.

I agree with the majority that Article 10 (art. 10) does not prohibit the imposition on the press of prior restraints, as such, on the publication of certain news or information. However, taking into account the vital importance in a democratic society of freedom of expression and freedom of the press, the State ’ s margin of appreciation in these cases is very narrow indeed. The use of prior restraints must be based, in my opinion, on exceptionally relevant and weighty reasons which clearly outweigh the public ’ s legitimate interest in receiving news and information without hindrance. This leads me to the general conclusion that prior restraints can be imposed on the press only in very rare and exceptional circumstances and usually only for very short periods of time.

The aim of the temporary injunctions in this instance was to preserve the status quo during judicial proceedings. As such, this is a legitimate aim. But was there a pressing social need for these measures in a democratic society and were they proportionate to the aims pursued?

First of all, I would stress that in today ’ s world news and information travel very quickly and easily from country to country and that it is practically impossible to stop this. As the present case shows, temporary injunctions imposed on the Observer and Guardian applicants - which were binding on all the British media through the operation of the doctrine of the contempt of court - could not prevent the flow of the information in question from abroad. Prior restraint was, therefore, not an effective means of achieving the aim of preserving the status quo. Furthermore, before the temporary injunctions were granted, the confidentiality of the material concerned had to a large extent already been destroyed by previous publications and television interviews. Accordingly, there was no need for the restrictions on this occasion.

These considerations alone show, in my opinion, that in the instant case there was no pressing social need for so drastic a measure as prohibiting the press from disseminating information.

PARTLY DISSENTING OPINION OF JUDGE MORENILLA

1. I agree with the majority of the Court that the interlocutory injunctions imposed on the Observer and Guardian applicants ("O.G.") by Mr Justice Millett on 11 July 1986 ("the Millett injunctions") forbidding the publication of information obtained by Mr Peter Wright in his capacity as a member of the British Security Service - which injunctions extended to all the British media, including The Sunday Times, by virtue of the law of contempt of court and remained in force until 13 October 1988 - constituted an interference with O.G. ’ s freedom of expression and their right to hold opinions and to receive and impart information and ideas, guaranteed by Article 10 para. 1 (art. 10-1) of the Convention.

I also agree, but not without some hesitation, that this interference was "prescribed by law", as this expression is understood in the case-law of our Court (see the Sunday Times judgment of 26 April 1979, Series A no. 30, pp. 30-31, paras . 47-49): in accordance with the common-law system, it was based on judicial precedents and they were adequately accessible and the result of their application sufficiently foreseeable. Again, I share the majority ’ s view that the injunctions were designed to protect the position of the Attorney General as a litigant pending the trial of his breach of confidence actions against O.G. and also served the purpose of protecting national security by preventing further dissemination of confidential information on the operation of the Security Service. Both of these aims are legitimate under paragraph 2 of Article 10 (art. 10-2).

I must, however, record my disagreement on the key issue, namely the necessity of such restrictions in a democratic society. At no time, in my opinion, were these temporary injunctions justified by a "pressing social need" or proportionate to any legitimate aims pursued. I must, therefore, dissent from the majority ’ s conclusion regarding the period from 11 July 1986 to 30 July 1987 .

2. In my view, this central issue should not have been separated into two periods, as was done by the Commission, "for the sake of clarity", and the majority of the Court. All the decisions, from that of Mr Justice Millett to that of the House of Lords in 1987, were part of the same interlocutory proceedings and O.G. were subject to essentially the same restrictions throughout the period from July 1986 to October 1988. Separating it into two has led to the somewhat inconsistent outcome of finding those restrictions to be partly in accordance with and partly in violation of the Convention.

On 29 April 1987 O.G. applied for the discharge of the Millett injunctions, notably because of reports that had appeared in three other English newspapers (see paragraphs 22-23 of the judgment). On 12 July 1987 , a date intended to coincide with that of the publication of Spycatcher in the United States of America , The Sunday Times published a first extract from the book (see paragraphs 27-28 of the judgment). Nevertheless, the House of Lords decided to maintain the injunctions and, as a result of the law of contempt of court, they bound all the British media, including The Sunday Times.

The publication of Spycatcher in the United States and the world-wide diffusion of Mr Wright ’ s disclosures on the activities of MI5 are not "relevant", in my opinion, either to O.G. ’ s claim under Article 10 (art. 10) or to the breach of confidentiality that the Government imputed to them: they merely confirmed that to attempt to prevent the dissemination in English-speaking countries of information of general interest by imposing a judicial restraint on the British media was neither realistic nor effective.

3. The major principles emerging from the Court ’ s case-law on Article 10 (art. 10) - with which principles I fully agree - are conveniently summarised in paragraph 59 of the present judgment and I do not need to elaborate on that summary here.

The Government have recalled the Court ’ s observation, in its markt intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989 (Series A no. 165, p. 21, para. 37), that it should not substitute its own evaluation for that of the national courts where the latter, on reasonable grounds, have considered restrictions to be necessary. They have also submitted that the margin of appreciation to be afforded to the national authorities, in assessing whether the protection of national security demands the imposition of temporary restraints on publications, is a wide one.

The Court ’ s observations in the markt intern case, which related to the publication in a specialised sector of the press of information of a commercial nature, do not in any way establish an exception to its supervisory jurisdiction, which is described in paragraph 59 (d) of the present judgment.

In the Convention system, the Court has been empowered to draw the line between the competence of the national courts and its own competence, while at the same time maintaining their respective responsibilities to secure the guaranteed rights and freedoms, according to Articles 1 and 19 (art. 1, art. 19). It is true that the State ’ s margin of appreciation is wider when it is a question of protecting national security than when it is a question of maintaining the authority of the judiciary by safeguarding the rights of the litigants (see the above-mentioned Sunday Times judgment, Series A no. 30, p. 36, para. 59, and the Leander judgment of 26 March 1987, Series A no. 116, p. 25, para. 59). However, the margin of appreciation concept must always be applied, taking into account the circumstances of each case, on the basis of a coherent interpretation of Article 10 (art. 10) in accordance with the European case-law and certainly not in a manner that could destroy the substance of freedom of expression.

4. The overriding importance of freedom of expression, the vital role of the press in a democratic society and the right of the public to receive information on matters of general concern, all of which factors have been repeatedly emphasized in the case-law of this Court, required in the present case the application of a very strict test of necessity. When seeking to justify the restrictions imposed on O.G. on the grounds of the interests of national security and of preserving the Attorney General ’ s rights until the trial, the Government have, in my opinion, failed to "establish convincingly" (see paragraph 59 (a) of the present judgment) that such a test was satisfied.

A. The interests-of-national-security issue

5. Like the members of the majority of the Commission, Mr Frowein , Mr Busuttil and Mr Weitzel , I am of the opinion that the primary concern of the English courts in the present case was not the protection of national security but the protection of confidentiality. The danger for national security was alleged indirectly, as resulting from the loss of confidentiality and the impairment of the efficiency and reliability of the Security Service. Thus, Mr Justice Millett said in his judgment (transcript, p. 11E-F): "It is obvious that a Security Service must be seen to be leak-proof. The appearance of confidentiality is essential for its proper functioning. Its members simply cannot be allowed to write their memoirs."

The interlocutory injunctions had the consequences that (1) a restraint was imposed without a full hearing of the plaintiff ’ s arguments; and (2) the ban extended to all the media by operation of the common-law doctrine of criminal contempt of court. And, in fact, contempt of court proceedings were instituted against The Independent, The London Evening Standard, the London Daily News and The Sunday Times (see paragraphs 22 and 27 of the judgment).

The national judges were well aware of the gravity of the measure. Mr Justice Millett said in his judgment (transcript, p. 6B-C) that "prior restraint of publication is a serious interference with the freedom of the Press and the important constitutional right to freedom of speech". In the Court of Appeal on 25 July 1986 , Sir John Donaldson began his judgment (transcript, p. 3A) by stating that " ‘ Prior Restraint ’ are two of the most emotive words in the media vocabulary. Accordingly The Guardian and the Observer reacted swiftly and forcefully to news that Mr Justice MacPherson had granted an ex parte injunction on 27 June 1986 ...".

6. In fact, distrust for these provisional restraints on the press is long-established in the common-law tradition. Blackstone wrote in 1765 in his "Commentaries on the Law of England" a sentence which it has become obligatory to quote: "The liberty of the Press is indeed essential to the nature of a free State : but this consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published."

The United States case-law cited by "Article 19", the International Centre against Censorship (see paragraph 6 of the present judgment), has consistently held that the principal purpose of the First Amendment ’ s guarantee is to prevent prior restraints. With regard to the national-security aim the United States Supreme Court declared in Near v. Minnesota (283 U.S./718) that: "The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right."

The other leading decisions of that Court, such as those in New York Times Co. Ltd v. the U.S., 403 U.S./713 (1971) (the Pentagon Papers case), Landmark Communications Inc. v. Virginia, 425 U.S./829 (1978) (the Landmark case), Nebraska Association v. Stuart, 427 U.S./ 593 (1976) and U.S. v. The Progressive, 486 F. supp. 990 (1979) (the Hydrogen Bomb case), have consistently required that very strict conditions ("all but totally absolute") must be satisfied before prior restraints can be imposed on the publication of information on matters related to national security. In the words of the Nebraska judgment, "the thread running through all these cases is that prior restraints on speech or publication are the most serious and least tolerable infringement on the First Amendment rights ... A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘ chills ’ speech, prior restraints ‘ freeze ’ it, at least for a time." Justice Brennan, concurring with the judgment, stated "although variously expressed it was evident that even the exception was to be construed very, very narrowly: when disclosure ‘ will surely result in direct, immediate and irreparable damage to our nation or its people ’ ".

7. While sharing the view of the majority expressed in paragraph 60 of the present judgment, I believe that restrictions on freedom of expression such as those imposed on O.G. allegedly to protect national security are very far from fulfilling these standards. The Government have not shown the "direct, immediate and irreparable damage" to the security of the United Kingdom that was or would have been occasioned by the articles published by O.G. or from the disclosures which it was feared at the time that Mr Wright might make. Mr Justice Millett said in his judgment (transcript, p. 10F): "It is clear from those passages [in Sir Robert Armstrong ’ s affidavits] that the true nature of the Attorney General ’ s objection is not to the fresh dissemination of allegations about past activities of the Security Service of the kind outlined in the recent articles published by the defendants. They are ancient history and have been the subject of widespread previous publicity."

The "appearance of confidentiality" may be "essential to the effective operation of the Security Service" - as it is to other public services - but, for the purposes of Article 10 para. 2 (art. 10-2) of the Convention, it does not, in my opinion, of itself justify the imposition, on the grounds of protecting national security, of a prior restraint that impairs freedom of the press and the right of the public to be properly informed. Dissemination of the information in question could be restricted "only if it appeared absolutely certain" that its diffusion would have the adverse consequence legitimately feared by the State (see, mutatis mutandis, the above-mentioned Sunday Times judgment, Series A no. 30, pp. 41-42, para. 66).

The two Law Lords who dissented from the decision of the House of Lords of 30 July 1987 expressed their views on this point. Lord Bridge of Harwich said that "freedom of speech is always the first casualty under a totalitarian regime. Such a regime cannot afford to allow the free circulation of information and ideas among its citizens. Censorship is the indispensable tool to regulate what the public may and what they may not know. The present attempt to insulate the public in this country from information which is freely available elsewhere is a significant step down that very dangerous road" (Attorney General v. Guardian Newspapers Ltd [1987] 1 Weekly Law Reports 1286F). Lord Oliver of Aylmerton stated that "to attempt, even temporarily, to create a sort of judicial cordon sanitaire against the infection from abroad of public comment and discussion is not only, as I believe, certain to be ineffective but involves taking the first steps upon a very perilous path" (ibid., 1321D).

8. When considering whether the injunctions imposed on O.G. by the national authorities were necessary for and proportionate to the aim of protecting national security, I see the following circumstances as militating against the necessity of so serious a restriction.

(a) The Government had neither indicated precisely what information in the articles published by O.G. imperilled British security operations nor demonstrated the imminent or substantial danger for national security they created.

(b) The articles, which appeared on the inside pages of the newspapers, were short and fair reports on the issues in the Australian proceedings. The allegations about the activities of MI5 had, according to Mr Justice Scott (Attorney General v. Guardian Newspapers Ltd (No. 2) [1990] 1 Appeal Cases 128-138), been divulged before in twelve books and three television programmes, and especially in two books written by Mr Chapman Pincher in 1981 and 1984 and in a television interview with Mr Wright himself that had been publicly announced in advance. And, as the Vice-Chancellor, Sir Nicolas Browne-Wilkinson, stated (Attorney General v. Guardian Newspapers Ltd [1987] 1 Weekly Law Reports 1264C), "in the present case, it is not suggested, nor could it be, that The Guardian and the Observer have in any sense been involved in any activity with Mr Wright leading to the publication of his book ... . They have not aided and abetted Mr Wright in his breach of duty." He concluded that if "a third party who is not a participator in the confidant ’ s breach of duty receives information which at the time of receipt is in the public domain - that is to say, he gets it from the public domain - in my judgment he would not, as at present advised, come under any duty of confidence" (ibid., 1265E).

(c) The Government had neither taken any steps to prosecute Mr Wright or the authors or editors of the earlier publications under the Official Secrets Act 1911 nor brought civil actions for breach of confidence seeking a declaration, damages or an account of profits.

(d) The claim for permanent injunctions against the newspapers was based on rather hypothetical grounds, for example: (1) their information was obtained directly or indirectly from Mr Wright; (2) they wished to publish further disclosures about the activities of the Security Service; (3) this would endanger the efficient operation of the Service and its "appearance of confidentiality"; and (4) this would also encourage other members or former members of the Service to publish confidential information.

(e) The evidence adduced by the Attorney General at the interlocutory stage was the two affidavits sworn by Sir Robert Armstrong in the Australian proceedings, which emphasized that the preservation of the appearance of confidentiality was essential to the effective operation of the Security Service. It deserves to be stressed that, in fact, as the Commission pointed out in its report (paragraph 89), "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".

B. The maintenance-of-the-authority-of-the-judiciary issue

9. As stated before, one aim of the temporary injunctions was the preservation of the rights of the Attorney General pending the substantive trial. The Government contended that the imposition of an interlocutory injunction to restrain publication of material which is the subject-matter of an action might, if publication in advance of the trial would destroy the substance of the action, in principle be considered necessary in a democratic society for maintaining the authority of the judiciary, in terms of the Court ’ s above-mentioned Sunday Times judgment (Series A no. 30, p. 42, para. 66). While accepting in abstracto such a proposition, I consider, nevertheless, that in the circumstances of the present case the Government have failed to show that the grant of an injunction on this ground responded to any "pressing social need" or that the measure was proportionate to the aim pursued.

10. Interlocutory injunctions provisionally restrain the parties to a civil suit from taking any action that could endanger the final decision of the court. They are thus designed to preserve the status quo until the trial in order to ensure, in a case where an award of damages would not compensate for the injury caused by the defendant, that the judgment will be effective.

The general principles governing the grant of interlocutory injunctions were enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396; see paragraph 10 of the present judgment), a case relating to the alleged infringement of a patent. On that occasion the House modified the former criteria by directing that, instead of examining whether the evidence disclosed a prima facie case of infringement, the court should only check whether the plaintiff ’ s claim for a permanent injunction had any real prospect of success, that is whether he had an arguable case. If the claim was not "frivolous or vexatious", the question whether an injunction should be granted was to be determined in the light of the "balance of convenience" between the conflicting interests of the litigants.

It was on the basis of these American Cyanamid rules that the Millett injunctions were granted and subsequently upheld in the interlocutory proceedings. 11. The application of these revised criteria clearly favours a plaintiff who seeks a temporary injunction because, without having a full trial on the main issue of whether or not the alleged confidential information may be published, he can succeed merely by showing that his case is "arguable".

Indeed, in the present case the rigid application of the American Cyanamid principles led to the "inevitable" imposition of a prior restraint on the media, which directly impaired O.G. ’ s freedom of expression and the right of the public to be informed quickly about matters of legitimate general concern, such as allegedly unlawful activities on the part of the Security Service.

Consequently, the legal strategy of the Attorney General turned out to be in conflict with the "necessity" test under Article 10 para. 2 (art. 10-2) of the Convention and the national courts, when balancing the conflicting interests at issue, did not give sufficient weight to the fundamental importance in a democratic society of freedom of expression.

The particular circumstances of the case, to which I have already referred in section A above, and the following factors, which were all clearly apparent when the claims for interlocutory injunctions were determined, meant that the restrictions on the media sought by the Government were not justified under Article 10 para. 2 (art. 10-2) for the aim of maintaining the authority of the judiciary.

(a) For the first time the Attorney General was instituting private-law proceedings relating to a breach by a former employee of the Security Service of his duty of confidence and, relying on a commercial-law precedent, was seeking an interlocutory injunction to preserve his claim for a permanent injunction as the sole means of protecting that duty of confidence. Lord Oliver of Aylmerton said, "I have not been able to find nor have your Lordships been referred to any previously reported decision which could be said to be even remotely parallel to the instant case" (Attorney General v. Guardian Newspapers Ltd [1987] 1 Weekly Law Reports 1315G).

(b) In June 1986 Mr Wright ’ s disclosures were already in the public domain and the information was no longer confidential because, as stated above, they had been published in several books and divulged by him in a television interview, with no reaction on the part of the Government. Mr Justice Millett was very explicit on this point when saying in his judgment, "the allegations themselves may be compiled from a number of published sources by anyone who takes the trouble to go to them" and "the objection is not to the allegations themselves, but to Mr Wright ’ s input. It is true that Mr Wright has provided information on previous occasions, once in a television interview and, if footnotes to certain published works are to be believed, by collaborating with their author" (transcript, pp. 5C and 13B).

(c) As a consequence, the aim of preserving the status quo could not be attained because of the leakage of the confidential information and the absence of any previous reaction by the Government.

(d) The application of the American Cyanamid principles to a case of breach of confidence involving matters of legitimate public concern had the consequence of imposing on the media - without a full hearing on the issue of whether or not the information might be published - a prior restraint implying, because of the threat of contempt of court proceedings, a partial self-censorship.

In fact, the rationale of the Millett injunctions was to maintain the "appearance of confidentiality" of the Security Service by forbidding - through the imposition on the media, albeit temporarily, of an immediate restraint - the publication of anticipated further disclosures or "leakages" in the Service.

The English courts arrived at this decision after applying the "balance of convenience" test and this resulted in a serious limitation on freedom of expression. Mr Justice Millett said on this point (transcript, p. 8D) that "it makes no difference that the claim to suppress publication is made by the Government and not by a private litigant; the principles remain the same". However, while that test may be correct under English law, it is not acceptable when it comes to deciding whether a limitation of freedom of expression of the kind involved in this case is justified under Article 10 para. 2 (art. 10-2) of the Convention. I agree with the majority of the Commission that, when it is the Government which seek to restrict the dissemination of information that is of considerable public interest, the need for a temporary injunction "should be established with particular clarity and certainty" because of the predominant place occupied by freedom of expression and the international obligation incumbent on the public authorities not to interfere with it.

(e) The fact that, as noted in the interlocutory decisions, O.G. were in no way involved in Mr Wright ’ s proposed publication was overshadowed by their admission that they wished to publish credible information, of legitimate public concern, relating to the unlawful operation of the Security Service or the misconduct of its members. Mr Justice Millett ’ s opinion that "disclosures to the proper authorities may be sufficient in some cases" also seems inconsistent with the right to receive and impart information and ideas enshrined in Article 10 (art. 10). The public has a right to be promptly informed on such matters, irrespective of whether a report is made to the proper authorities with a view to prosecution and punishment. Since a limitation on freedom of the press was involved, greater weight should have been given to the "iniquity defence" (the right to report misconduct) relied on by O.G.

The dangers of so rigid an application of this precedent were pointed out by Lord Oliver of Aylmerton when he said: "The guidelines laid down by this House in American Cyanamid Co. v. Ethicon Ltd ... have come to be treated as carved on tablets of stone, so that a plaintiff seeking interlocutory relief has never to do more than show that he has a fairly arguable case. Thus the effect in a contest between a would-be publisher and one seeking to restrain the publication of allegedly confidential information is that the latter, by presenting an arguable case, can effectively through the invocation of the law of contempt, restrain until the trial of the action, which may be two or more years ahead, publication not only by the defendant but by anyone else within the jurisdiction and thus stifle what may, in the end, turn out to be perfectly legitimate comment until it no longer has any importance or commands any public interest" (Attorney General v. Times Newspapers Ltd [1991] 2 Weekly Law Reports 1022B).

(f) The discretionary grant of an interlocutory injunction should not prejudice the final determination of the action, but the court, under the American Cyanamid principles, has to consider if the plaintiff has shown an "arguable case" or if he has a "good cause". The fumus boni iuris of the main action is thus an important element in the exercise of the discretion.

The circumstances of the present case did not show, or at least did not show with sufficient clarity, that the Attorney General had an arguable case for a permanent injunction. All the interlocutory decisions nevertheless reached the opposite conclusion and consequently the temporary injunctions were granted to preserve his rights pending trial.

Today, however, with the benefit of hindsight and after the judgments on the merits delivered at three levels, it is easy to affirm that such a "good cause" did not exist. The terms used by the judges leave no doubt on this issue. In his very thorough judgment of 21 December 1987 Mr Justice Scott said: "It is equally unacceptable that the government ’ s assertion of what national security requires should suffice to decide the limitations that must be imposed on freedom of speech or of the press"; "In my view the articles represented the legitimate and fair reporting of a matter that the newspapers were entitled to place before the public, namely the court action in Australia"; and he concluded categorically: "The Guardian and the Observer were not in breach of confidence in publishing the articles about the Australian Spycatcher case in their respective editions of 23 June 1986 and 22 June 1986." (Attorney General v. Guardian Newspapers Ltd (No. 2) [1990] 1 Appeal Cases 144B, 167H and 172H).

Likewise, when the House of Lords gave judgment on 13 October 1988 , Lord Keith of Kinkel said (ibid., 264A): "I consider that on balance the prospects are that the Crown would not have been held entitled to a permanent injunction. Scott J. and the majority of the Court of Appeal took that view, and I would not be disposed to differ from them." Lord Brightman affirmed (ibid., 266E): "I agree with the majority of your Lordships that, despite the reprehensible leakage of information which was the source of these articles about the then forthcoming Australian proceedings, the articles were not in fact damaging to the public interest and are not therefore a proper foundation for any case by the Crown against these newspapers." And Lord Goff of Chieveley expressed himself in similar terms (ibid., 290C): "the articles were very short: they give little detail of the allegations: a number of the allegations had been made before: and 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 circumstance, the claim to an injunction was not proportionate to the legitimate aim pursued."

(g) The "temporary" and "provisional" nature of the interlocutory measures cannot justify under the Convention the restriction imposed on O.G.. As they asserted, "in many media cases, an interlocutory injunction is effectively a final injunction, because news is perishable ; a delay of weeks, months or more is equivalent to no publication". To "postpone" - the word used in the domestic judgments - information for more than two years could result in finding that the content had volatilised because of the transient character of the news.

(h) Finally, it was also obvious that the injunctions did not correspond to a "pressing social need" because, as the facts of this case have demonstrated, they were useless and unreal. It was plainly unreal to seek, by a judicial order, to restrain dissemination of news of general interest, or to seek, by an injunction against the media, to discourage members of State authorities who have access to secret, classified or simply confidential information of general interest from publishing it. And this unreality is even more evident when the news is written or broadcast in English: information is diffused universally in this language, notably by American or foreign publications or broadcasts that are sold or received in the United Kingdom . In today ’ s circumstances such an injunction is an illusory measure since many of these media are outside the jurisdiction of the English courts.

Like the Vice-Chancellor in his judgment of 22 July 1987 (see paragraph 33 of the present judgment), I think that "there is a limit to what can be achieved by orders of the court. If the courts were to make orders manifestly incapable of achieving their avowed purpose, such as to prevent the dissemination of information which is already disseminated, the law would to my mind indeed be an ass ... 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" (Attorney General v. Guardian Newspapers Ltd [1987] 1 Weekly Law Reports 1269F and H).

This pragmatic reasoning is, in my opinion, sufficient to demonstrate that what is clearly impracticable cannot be considered "necessary". Likewise, the very limited effect of the ban on the British media shows that the restraints imposed on O.G. were manifestly disproportionate.

12. Consequently, taking all these factors separately and as a whole, I must depart from the majority ’ s conclusion (see paragraph 65 of the judgment) that the national authorities were entitled to think that the interference complained of was necessary in a democratic society. Furthermore, I believe that the reasons expressed in paragraphs 68 and 69 of the judgment for finding a violation in the period after 30 July 1987 were also valid as regards the earlier period, when such of the information published in Spycatcher as was relevant was already known to the public (see paragraph 12 of the judgment).

I therefore conclude that there was a violation of Article 10 (art. 10) of the Convention in the period from 11 July 1986 to 30 July 1987 , as well as in that from 30 July 1987 to 13 October 1988 .

[*]  The case is numbered 51/1990/242/313.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   The amended Rules of Court which entered into force on 1 April 1989 are applicable to the present case.

[*]  Case no. 50/1990/241/312.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 216 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[*]  Justice Black, joined by Justice Douglas, in the case, very similar to the present one, of the Pentagon Papers, New York Times v. U.S. and U.S. v. Washington Post (1971), 403 U.S. 713, at 717. Although they were there used in the context of the Constitution of the United States of America, these words perfectly express the general principle to be applied in this field.

[*]   Justice Douglas, joined by Justice Black, in the same case, at 723-724.

[*]    Article 15 (art. 15) of the Convention.

[*]  See my opinion concerning the Belilos case, Series A no. 132, p. 36.  See also Article 1 (art. 1) of the Convention, particularly in the French text.

[*]   See Article 1, section 3, of the Basic Law of the Federal Republic of Germany.

[*]    See Article VI, section 2, of the Constitution of the United States of America .