European Commission of Human Rights: UK government, the media &
01 January 1991
European Commission of Human Rights: UK government, the media &
Spycatcher
bacdoc August=1991
Press communique issued by Secretary to European Commission of
Human Rights
Application No. 14644/89: TIMES NEWSPAPERS LTD and NEIL v. the
United Kingdom
On 11 April 1991, the European Commission of Human Rights
(Council of Europe) held a hearing on the admissibility and
merits of the above application against the United Kingdom.
The case principally concerns the applicants' complaint
of a breach of Article 10 of the Convention insofar as a House
of Lords judgment on 13 October 1988 found them in breach of
confidence and required them to account for profits made by their
publication of an extract from "Spycatcher" published on 12 July
1987 in The Sunday Times.
After the hearing and deliberations, the Commission
declared the application admissible.
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. The Government sought to prevent
its publication in Australia. In June 1986 the Observer and
Guardian newspapers published reports about the book's
allegations. The Attorney General then sought and obtained
temporary injunctions restraining further such reports. On 12
July 1987 The Sunday Times published the first of an intended
series of extracts from the book one day before the book was
published in the United States of America, where it became a
bestseller. This resulted in the applicants being joined in the
further proceedings involving the Observer and Guardian
newspapers. On 30 July 1987, the aforementioned temporary
injunctions were upheld by the House of Lords, which over a year
later, on 13 October 1988, refused permanent injunctions in view
of the widespread publication of the book by then. In that
judgment of 13 October 1988 the House of Lords nevertheless found
that the applicants had acted in breach of their duty of
confidence and ordered them to account to the Attorney General
for any profits made from their publication of the extract on 12
July 1987 in The Sunday Times.
The applicants submitted, inter alia, that there had
been an interference with their freedom of expression 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 Article 10 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 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; a