Times Newspapers Ltd ; Neil v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 14644/89

by TIMES NEWSPAPERS Ltd. and Andrew NEIL

against the United Kingdom

The European Commission of Human Rights sitting in private

on 11 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 2 February 1989

by TIMES NEWSPAPERS Ltd. and Andrew NEIL against the United Kingdom

and registered on 15 February 1989 under file No. 14644/89;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure

of the Commission;

- ii -

14644/89

- the observations of the Government submitted on 19 April 1990;

- the observations of the applicants submitted on 9 July 1990;

- the parties' oral submissions at the hearing on 11 April 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are:

1 Times Newspapers Ltd., publishers of The Sunday Times, a

national Sunday newspaper published in the United Kingdom;

2 Andrew Ferguson Neil, editor of The Sunday Times, a British

citizen.

They are represented before the Commission by Messrs. Theodore

Goddard, Solicitors, London.

A. The particular facts of the case

The full facts giving rise to this application are set out in

the Commission's Report adopted on 12 July 1990 in Application

No. 13166/87 brought by the same applicants against the United Kingdom.

The present case is an extension of that application. There follows a

brief summary of the relevant facts which are not disputed by the

parties.

Peter Wright, a former member of the British Security Service

MI5, sought to publish his memoirs in a book entitled "Spycatcher".

The book contained several allegations of misconduct on the part of

MI5. Much of the material in the book had already been disclosed by

other authors or in television programmes, including a Granada

Television interview with Mr. Wright in 1984. "Spycatcher" was first

to be published in Australia in 1985 but the United Kingdom

Government, represented by the Attorney General, instituted

proceedings in the Australian courts to prevent publication. In June

1986 the Observer and Guardian newspapers published short reports

about some of the allegations in the book. The Attorney General

instituted proceedings against these newspapers for breach of

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

England and Wales. Temporary injunctions restraining further such

reports were granted from 11 July 1986 until the matter was finally

decided on the merits by the House of Lords on 13 October 1988.

Despite these injunctions the applicants sought to publish

serialised extracts from "Spycatcher" before it was published in the

United States of America (USA) on 14 July 1987. The first extract was

published in The Sunday Times on 12 July 1987, the second applicant

having employed evasive tactics to circumvent any Government action to

restrain publication. The extract was not put in the first edition of

the newspaper, but in the later editions. Apparently The Sunday Times

sales of that day were slightly above average. In order to prevent

the applicants publishing further extracts, the Attorney General

initiated two sets of proceedings, one for contempt of court, the

other for an injunction restraining further publication, which

proceedings led to the applicants being joined in the breach of

confidence suit against the Observer and Guardian newspapers. The

Attorney General was seeking permanent injunctions against all three

newspapers to restrain the publication of any of the "Spycatcher"

material. By a judgment of the House of Lords on 30 July 1987, the

applicants were bound to refrain from publication of further extracts

by virtue of the temporary injunctions which prevented publication of

further reports by the Observer and Guardian newspapers, pending the

outcome on the merits of the breach of confidence proceedings.

The judgment on the merits at first instance, given by

Mr. Justice Scott on 21 December 1987, exonerated the actions of the

Observer and Guardian Newspapers. In contrast, however, Mr. Justice

Scott found that The Sunday Times had been in breach of a duty of

confidence by publishing extracts from "Spycatcher" on 12 July 1987.

It was held that Mr. Wright owed a duty of confidence towards the

Crown. The applicants, being the recipients of unauthorised

disclosures of information by Mr. Wright, were under the same duty of

confidence. Mr. Justice Scott said in his judgment:

"The contents of the extracts published on 12 July 1987

include a good deal of material that could not be

represented as raising any issue on which the public

should be invited to judge or in respect of which the

public interest to be served by disclosure could be

thought to outweigh the interests of national security."

Accordingly, the indiscriminate publication represented a

breach of the duty owed by the applicants. The Attorney General was

therefore entitled to an account and payment of profits made by The

Sunday Times out of the publication of those extracts. Although the

extracts contained material which, if it had stood alone, The Sunday

Times would have been entitled to publish, the judge held that no

apportionment of any profit would be allowed in view of the deliberate

nature of the breach. Mr. Justice Scott concluded as follows:

"The Sunday Times published the 'Spycatcher' extract well

knowing that the Attorney General would, if he had wind of

what was afoot, seek, and be likely to obtain, an

interlocutory injunction restraining publication. The Sunday

Times published the service memoirs of an ex-officer of MI5

indiscriminately. The breach of duty was the publication

of the extract as a whole. An account of profits is an

equitable remedy. It does not follow as of course upon a

breach of duty. In the circumstances of this case, and

particularly in view of The Sunday Times' endeavours to

keep the Government in the dark and to prevent the court

from adjudicating on the propriety of the publication until

it was too late, The Sunday Times is in no position to argue

against the equity of an order that it account for the profit,

if any, made out of the publication."

This decision was upheld by the Court of Appeal by a majority

on 10 February 1988. Sir John Donaldson M.R., for the majority, held

that the applicants had behaved disreputably and irresponsibly in

order to serialise "Spycatcher" and escape Government attention. The

Sunday Times was in a different position from the Observer and

Guardian newspapers because in serialising the book the applicants

stood in Mr. Wright's shoes by virtue of a contract with and a licence

granted by his publishers; hence their breach of the duty of

confidence. He noted that the whole object of The Sunday Times in

publishing the extract on 12 July 1987 was to get in ahead of the US

publication of the book for its own profit.

Lord Justice Bingham dissented on the basis that it was then a

virtual certainty that widespread publication of the book in the USA

would almost immediately take place. He commented, however, that

although it was virtually certain that widespread publication of the

book was imminent in the USA, it was not known at that stage whether

the United Kingdom Government would seek to prohibit import of the

book into the United Kingdom, how effective such a prohibition would

be, and that it would be fair to assume that the circulation of the

book in the United Kingdom might have been relatively small.

Further appeal by the applicants to the House of Lords was

dismissed on 13 October 1988. Lord Keith of Kinkel held as follows:

"The next issue for examination is conveniently the one as

to whether 'The Sunday Times' was in breach of an obligation

of confidentiality when it published the first serialised

extract from 'Spycatcher' on 12 July 1987. I have no

hesitation in holding that it was. Those responsible for

the publication well knew that the material was confidential

in character and had not as a whole been previusly published

anywhere. Justification for the publication is sought to be

found in the circumstance that publication in the United

States of America was known to be imminent. That will not

hold water for a moment. It was Mr. Wright and those acting

for him who were about to bring about the American publication

in breach of confidence. The fact that a primary confidant,

having communicated the confidential information to a third

party in breach of obligation, is about to reveal it similarly

to someone else, does not entitle that third party to do the

same. The third party to whom the information has been

wrongfully revealed himself comes under a duty of confidence

to the original confider. The fact that his informant is about

to commit further breaches of his obligation cannot

conceivably relieve the third party of his own. If it were

otherwise an agreement between two confidants each to publish

the confidential information would relieve each of them of his

obligation, which would be absurd and deprive the law about

confidentiality of all content. The purpose of The Sunday

Times was of course to steal a march on the American

publication so as to be the first to reveal, for its own

profit, the confidential material. The evidence of Mr. Neil,

editor of The Sunday Times, makes it clear that his intention

was to publish his instalment of 'Spycatcher' at least a full

week before the American publication and this was in the event

reduced to two days only because circumstances caused that

publication to be brought forward a week. There can be no

question but that the Crown, had it learned of the intended

publication in The Sunday Times, would have been entitled to

an injunction to restrain it. Mr. Neil employed peculiarly

sneaky methods to avoid this. Neither the defence of prior

publication nor that of just cause or excuse would in my

opinion have been available to The Sunday Times. As regards

the former, the circumstance that certain allegations had been

previously made and published was not capable of justifying

publication in the newspaper of lengthy extracts from

'Spycatcher' which went into details about the working of

the security service. As to just cause or excuse it is not

sufficient to set up the defence merely to show that

allegations of wrongdoing have been made ..."

Lord Goff concurred as follows:

"The simple fact is that, on 12 July, publication in the

United States had not taken place; certainly, on 12 July,

the information in 'Spycatcher' was not yet in the public

domain."

The House of Lords therefore confirmed the order that the

applicants should account for their profits to the Attorney General

and decided that the applicants should pay the costs of this part of

the appeal. However, it refused to grant any permanent injunctions

restraining the Observer or The Guardian from reporting on the

contents of the book or restraining The Sunday Times from serialising

further extracts from it because by that time "Spycatcher" was fully

in the public domain.

To date the applicants have not accounted for their profits.

B. The relevant domestic law

An account of profits is a form of equitable relief, the

principle underlying which is that no one should be permitted to gain

from his own wrongdoing. The nature of the equitable relief, and its

distinction from relief at law, are described in Halsbury's Laws of

England, 4th edition, volume 16, "Equity":

"1297. Principle of relief in equity. The principle

underlying relief at law is that the plaintiff has suffered

loss by the defendant's breach of contract or wrongful

conduct, and damages are awarded for the purpose of making

good this loss. The principle underlying relief in equity

is that the defendant has improperly received or withheld

property, or profits from property (such property or profits

belonging to the plaintiff) and he is required to restore the

property or to account for the profits. Thus at law the

extent of the remedy is measured by the loss to the plaintiff,

which is covered by the damages awarded; in equity the extent

of the remedy is measured by the gain to the defendant, which

is ascertained by directing an account against him."

The law relating to confidentiality and to the breach of a

duty of confidence was set out in the speeches in the House of Lords

in the present case and may be summarised as follows:

(1) The law has long recognised that an obligation of

confidence can arise out of particular relationships.

The obligation may be imposed by an express or implied

term in a contract but it may also exist independently of

any contract on the basis of an independent equitable

principle of confidence (per Lord Keith, at p. 781G-H;

per Lord Griffiths, at p. 793E-F; per Lord Goff, at

pp. 805H-806C).

(2) Three elements are normally required if, apart from

contract, a case of breach of confidence is to succeed:

the information itself must have the necessary quality of

confidence about it; the information must have been

imparted in circumstances importing an obligation of

confidence; and there must be an unauthorised use of that

information. Although detriment or potential detriment

to the plaintiff will mostly always form part of his

case, this may not always be necessary (per Lord Keith,

at pp. 781H-782F; per Lord Griffiths, at pp. 793F-794A;

per Lord Goff, at pp. 805G-H, 806C-G).

(3) The Crown is in a special position in relation to the

preservation of confidence; publication of information

imparted in confidence by the Government or its

predecessors will not be restrained by the grant of

injunction unless it can additionally be shown that

publication would be harmful to the public interest

(per Lord Keith, at pp. 783D-785B; per Lord Griffiths,

at p. 796A-C; per Lord Goff, at p. 807F-H).

(4) The duty of confidence is, as a general rule, also

imposed on a third party who is in possession of

information which he knows is subject to an obligation

of confidence (per Lord Keith, at p. 786A-B; per Lord

Griffiths, at p. 794A-C; per Lord Goff, at p. 806A-C).

(5) Information may lose its original confidential character

if it subsequently enters the public domain, at least in

a case where the confidential information is published by

the "confider" rather than by the "confidant" or by a

third party; information enters the public domain when it

is so generally accessible that, in all the

circumstances, it cannot be regarded as confidential (per

Lord Griffiths, at pp. 793H-794A; per Lord Goff, at

pp. 806G-H, 809E-810C).

(6) The general duty of confidence is subject to a further

qualification, namely that the public interest that

confidences should be preserved and protected by law

may be outweighed by some countervailing public interest

which favours disclosure: embraced within this limiting

principle is the so called defence of "iniquity", where

there exists a public interest in the disclosure of

wrongdoing.

COMPLAINTS

The applicants complain of violations of Articles 10, 13 and

14 of the Convention by virtue of the House of Lords judgment of

13 October 1988 ordering them to account for profits as well as costs.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 February 1989 and

registered on 15 February 1989. After a preliminary examination of

the case by the Rapporteur, the Commission considered the

admissibility of the application on 4 December 1989. It decided to

give notice of the application to the respondent Government and to

invite the parties to submit written observations on its admissibility

and merits. The Government's observations were submitted, after an

extension of the time limit, on 19 April 1990. The applicants'

observations in reply were submitted, after an extension of the time

limit, on 9 July 1990.

On 5 October 1990 the Commission decided to hold a hearing on

the admissibility and merits of the application, pursuant to Article

50 para. b of its Rules of Procedure. This hearing was held in

Strasbourg on 11 April 1991. At the hearing the Government were

represented by their Agent, Mrs. A. Glover, of the Foreign and

Commonwealth Office, Mr. N. Bratza, QC, and Mr. P. Havers, of counsel,

and Mr. D. Brummell, Treasury Solicitors. The applicants were

represented by Mr. A. Lester, QC, and Mr. D. Pannick, of counsel, and

Mr. A. Whitaker, Legal Manager of Times Newspapers Ltd.

THE LAW

The applicants complained that the judgment of the House of

Lords on 13 october 1988 ordering them to account for profits and

costs constituted a violation of Article 10 (Art. 10) of the

Convention, in particular, as well as a violation of Articles 13 and

14 (Art. 13, 14) of the Convention read in conjunction with Article 10

(Art. 10).

They submitted, inter alia, that there had been an

interference with their freedom of expression, ensured by Article 10

(Art. 10) of the Convention, because the House of Lords judgment was a

finding that they had acted unlawfully, which finding in itself

amounted to a formality, penalty and interference under this provision

of the Convention; the orders to account for profits, as well as

costs, amounted to a penalty, which had a chilling effect on freedom

of expression, inhibiting the applicants for the future; and the

binding nature and precedent of the judgment will deter future

publication of information in circumstances similar to those of the

present case, and thus constituted a substantial continuing

restriction on freedom of expression.

The applicants also contended that the interference with their

freedom of expression was not justified by Article 10 para. 2

(Art. 10-2) because at the time there was no pressing social need for

such interferences. In view of the imminent publication of

"Spycatcher" in the United States all confidentiality in the

information had already been irretrievably lost. On 12 July 1987 tens

of thousands of copies of the book had already been, or were being,

distributed to United States bookshops where they were placed on

display for sale from Monday 13 July 1987 onwards. The destruction of

any secrecy in the material was therefore inevitable. Accordingly

there was no difference in principle between publication by the

applicants on 12 July 1987 or a week later.

The Government submitted, inter alia, that the decision of the

House of Lords on 13 October 1988 did not constitute an interference

with the applicants' freedom of expression as they had published the

extract in question; after that decision they were able to publish the

remaining extracts, and, anyway, they have not to date accounted for

those profits. Even if there had been an interference, it was

prescribed by law and necessary in a democratic society for a

legitimate aim, namely the prevention of the disclosure of information

received in confidence, within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention. It resulted from the principles of

equity that the applicants should account for any profits made from

their breach of confidence. The requirement to account for profits

was well within the margin of appreciation afforded to States by the

Convention in such an area and was not disproportionate to the

legitimate aim pursued.

Article 10 (Art. 10) of the Convention guarantees freedom of

expression, including freedom to receive and impart information and

ideas regardless of frontiers. The exercise of these freedoms, since

it carries with it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are prescribed

by law and are necessary in a democratic society for certain limited

purposes, such as the protection of national security interests or the

prevention of the disclosure of information received in confidence.

Article 13 (Art. 13) of the Convention guarantees a right to an

effective domestic remedy for claims concerning breaches of the

Convention and Article 14 (Art. 14) requires States to secure the

enjoyment of Convention rights and freedoms without discrimination.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and fact under

the Convention, the determination of which should depend upon an

examination of the merits of the application as a whole.

The Commission concludes, therefore, that the application is

not manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)