CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }          The European Commission of Human Rights sitting in private on 10 July 1986, the following members being present:                         MM. J.A. FROWEIN, Acting President                         G. SPERDUTI                         E. BUSUTTIL                         G. JÖRUNDSSON                         G. TENEKIDES                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                      Mr.   J. RAYMOND, Deputy 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 21 March 1984 by W.S.W. against the United Kingdom and registered on 23 March 1984 under file No. 10871/84;           Having regard to:   -        the observations submitted by the respondent Government on 26 June 1985 and the observations in reply submitted by the applicant on 19 September 1985;   -        the further observations submitted by the respondent Government on 3 December 1985 and the comments and further comments in reply submitted by the applicant on 15 January and 1 February 1986 respectively;   -        the hearing of the parties on the admissibility and merits of the application on 10 July 1986;           Having deliberated,           Decides as follows:   THE FACTS           The applicant claims to be a stateless person, born in South Africa in 1940 and a journalist by profession.   The facts may be summarised as follows:           The applicant states that he is a political refugee from South Africa with permanent, settled status in the United Kingdom.           In 1981 a book, "Inside BOSS" (ie the South African Bureau of State Security), was published by Penguin Books Ltd (London), the author being Gordon Winter.   Chapter 26 of that book is entitled "The Smearing of S. W.", the applicant.   The tenor of the chapter is reflected in its first two paragraphs:           "If any man has good cause to loathe me, it is S.W., a         South African born photo-journalist.   In collusion with BOSS         I took part in a campaign of denigration aimed at smearing         him as a BOSS spy.   It was so successful that the smear is         still believed in London - even by some British security men.           In order to protect myself against S.'s freak discovery that         I was a BOSS agent, I deliberately befriended his wife ....,         took nude photographs of her in my London flat and circulated         them among South African exiles to 'prove' Stan was making         false claims against me because he was jealous of my affair         with <his wife>."           Amongst the various intimate references to the applicant's private life, appears the following:           "W., W. S. alias 'S.' - adult White Jewish         male, born Johannesburg 10.2.1941 charged under Immorality         Act 1966 after arrest by police in a Cape Town bedroom with         <the applicant's wife>, an adult, coloured female born in         <date and place specified> ....   Case withdrawn through lack         of evidence that illegal sexual intercourse actually planned         although the female was wearing trousers only as she lay in         bed and W. was naked."           "....   As I got to know her well, the truth about her life with         S. emerged.   She had loved and respected him;   he had been         the first man to take her to bed and had been a good lover.         But during the previous eighteen months he had become so         absorbed in his work and politics that he had neglected her.         She felt physically and mentally frustrated.   At the time he         had gone to South Africa.   She was actually considering         divorce...."           The applicant submits that some of the allegations in the book were true, of others he could not prove their untruth and others were false, but all were inextricably interwoven so as to constitute a gross invasion of his and his former wife's privacy, a matter not generally protected under English law (cf Report of Younger Committee on Privacy, Cmnd, 5012, 1972).   It appears that his former wife is now living in the United Kingdom.           A total of 15,000 copies of the book have reportedly been sold or distributed, although in an interview in "The Observer" newspaper, the editorial director of the publishers has stated that a reprint of the book was unlikely because sales declined to 250 copies in the last quarter of 1982.   It appears that the book has not been withdrawn, however, although it may now be out of print.           In respect of those matters which were clearly defamatory and untrue, involving the applicant's integrity as a journalist, the applicant did institute defamation proceedings against the publishers. He had sought legal advice in Zimbabwe in December 1981.   On expulsion from that country, following Mr Winter's successful smear campaign, the applicant sought legal advice from the National Council for Civil Liberties in London.   They, a firm of solicitors (under the Legal Advice and Assistance Scheme which then provided for limited assistance to the value of £25 plus value added tax) and a well known barrister (gratuitously) advised him that certain allegations in the book were "obviously libellous" but that he would need £20,000 to engage the services of a lawyer with defamation expertise, legal aid being unavailable for such matters.   The National Union of Journalists, whom the applicant also approached, although sympathetic, would not, as a matter of policy, become involved in cases of civil defamation.           As the applicant had not received any detailed advice on defamation law and procedure, he researched the subject and in December 1983 began correspondence with Penguin Books Ltd.   He required a full retraction and a public apology in open court and in a national newspaper, the withdrawal of the book, compensation and indemnity for costs incurred.   The applicant issued a writ against the publishers on 27 January 1984 setting out his claim.   A defence was entered on 24 April 1984 denying the claim.   In the meantime settlement negotiations were undertaken mostly by meetings and telephone conversations between the applicant and the publishers' solicitors.   Eventually a sum of £5,000 was offered to the applicant. Counsel was consulted through solicitors regarding this quantum.   The applicant states that he was advised as to the technical inadequacy of his statement of claim and that, lacking funds, he should not proceed as a plaintiff in person against skilled defence counsel, but should accept the offer.           On 4 July 1984 solicitors wrote to the applicant enclosing a letter from the publishers clarifying that they were satisfied that the applicant had at no time assisted the military wing of the African National Congress of South Africa or had been a member of the South African Communist Party.   Regret was also expressed about statements in Chapter 26 of "Inside BOSS", understood to reflect on the applicant's integrity as a journalist.   A cheque for £5,115 was also enclosed, £115 being for counsel's fees.   The applicant then withdrew his suit.           The notice of discontinuance and withdrawal merely stated that the applicant wholly discontinued and withdrew all his claims in the action, by consent, with no order as to costs.   The applicant calculates his special damages alone at £50,000;   he also had legal costs of £666.42 to pay.           The applicant alleges that notwithstanding an article in the "Observer" newspaper of 1 May 1983, there has been no media coverage of the book as it was, and still is, sub judice, there being claims from other people outstanding against the publishers.   Therefore he has been unable publicly and comprehensively to reply to all the allegations in the book because publishers were wary of possible action against them under the Contempt of Court Act 1981.           The Director of Public Prosecutions could not be persuaded to institute criminal libel or extradition proceedings against the author, who lives outside the United Kingdom.     COMPLAINTS           The applicant complains of the absence of a remedy in English law, including a right of reply, for gross invasions of privacy arising from matters published in book form and which are not necessarily defamatory or untrue.           He submits that the concept of privacy has no satisfactory definition in English law, a distinction being made from defamation, which in itself and with the unavailability of legal aid, provides inadequate protection for privacy.           The applicant claims to be a direct victim of a violation of his right to respect for his private life and his home ensured by Article 8 of the Convention.   He also claims to be an indirect victim in respect of the invasion of his former wife's right to privacy, she being unable to enter into direct litigation herself for fear of reprisals from the South African Secret Police.           The applicant submits that he has no domestic remedies.   He also contends that the settlement is not relevant to this part of his complaint, being a settlement only in respect of the existing English law of defamation.           The applicant claims that the absence of civil legal aid for defamation cases, involving a specialised and complex area of law, constitutes a denial of access to court contrary to Article 6 para. 1 of the Convention.   He also claims to be a victim of a violation of Article 5 of the Convention, his security of person being put at risk by the allegations in the book "Inside BOSS" that he was a terrorist or subversive.   He was thus made a target for either right wing extremists or African nationalists who may think, for this and other reasons in the book, that he is a BOSS double agent.   He had no remedy under English law for this situation.           Finally he comments that the settlement which he made could not take into account his further claim under the Convention to be an indirect victim of a breach of Article 8 because of the calumnious statements made about the private life of his ex-wife.   SUBMISSIONS OF THE PARTIES   A.       The Respondent Government   1.       General and factual submissions           The Government point out that the applicant accepted the offer of settlement made by the publishers after he had been advised by counsel, and that this advice may well have included advice as to the likelihood of damages at the trial had he continued with the action. The Government contest the amount of special damages which the applicant claims he would have been entitled to; at least a certain part of that sum was due to expenses incurred in having to leave Zimbabwe as a result of restrictions which affected not only the applicant but all persons leaving that country, for whatever reason.           Moreover, having regard to settlements obtained in other cases, and the difficulty in assessing damages in defamation cases, the applicant may well have received considerably less than £50,000 if the action had gone to trial.           The Government note that there was a certain amount of media coverage of the book, and they refer to the article in the "Observer" newspaper of 1 May 1983.   The Government also note that the applicant himself issued a press release concerning the book.   The Government dispute that the law of contempt of court would have prevented publication of the applicant's reply to the allegations made in "Inside BOSS" and point out that, in any event, the applicant does not allege that proceedings for contempt were brought against him.   The Government submit that even if one trial concerning "Inside BOSS" was "repeatedly being set down for trial and being postponed", that would not necessarily mean that a publication referring to those proceedings would automatically amount to a contempt of court, since it must also be shown that the publication creates a serious risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced (see post).   2.       Domestic law and practice           The Government consider the following three areas of law to be relevant to this application:           a)       Protection of privacy           b)       Availability of legal aid           c)       Contempt of Court   a)       Protection of Privacy           The Government deny that it can be inferred from the Younger Report (op. cit.) that English law inadequately protects a right to privacy.   The Younger Report (Chapter 5) gave a description of the legal protection available in Great Britain in respect of invasions of privacy and the Government refer to that Chapter and Appendix I to the Report.   The Government also submit that the whole aim of the Younger Report was to consider the balance which must be struck between, on the one hand, the individual's right to privacy and, on the other hand, other individuals' right to freedom of expression.   The Report concluded that a system of specific remedies for specific wrongs constituted adequate protection of privacy, even without a "blanket" definition and protection of a right to privacy as such.           As well as defamation, the Government consider that an action for a breach of confidence could have been brought by the applicant. The action for breach of confidence is described as a civil remedy affording protection against the disclosure or use of information which is not publicly known and which has been entrusted to a person in circumstances imposing an obligation not to disclose or use that information without the authority of the person who imparted it. The action for a breach of confidence has existed for many years and it is clear that English courts do recognise the relationship of husband and wife as giving rise, in certain circumstances, to obligations of confidence.   One example was the case of the Duchess of Argyle v. the Duke of Argyle and others [1967] Ch. 302 in which the plaintiff sought and obtained an injunction against the defendant to restrain him from making statements about her which were said to be secrets of the plaintiff relating to her private life, personal affairs or private conduct, communicated to the defendant in confidence during the subsistence of his marriage to the plaintiff and not hitherto made public property.   An injunction was also granted, in similar terms, against the second and third defendants who were, respectively, the editor and proprietor of a newspaper.   b)       Legal Aid           The availability of legal aid and the conditions on which it may be granted to a person to pursue civil proceedings before the courts in England and Wales is governed by Part I of the Legal Aid Act 1974 (as amended by the Legal Aid Act 1979 with effect from 18 April 1980) and regulations made under it.   Section 7 of the 1974 Act provides that legal aid is available in connection with many types of proceedings before courts and tribunals in England and Wales, but some forms of proceedings, including proceedings wholly or partly in respect of defamation, are excluded by virtue of Part II of Schedule I to the 1974 Act.   Legal aid consists of full representation by a solicitor and, so far as necessary, by counsel.           A secondary form of legal aid provides for limited advice and assistance on the application of English law to circumstances which have arisen in relation to the person seeking advice and to any steps which that person might appropriately take.   It is not subject to the same restrictions as formal legal aid, and can consequently be granted for discussions concerning defamation.   It does not cover representation in proceedings, and is not available to anyone to whom has been issued a legal aid certificate in respect of any proceedings.   c)       Contempt of court           The law on contempt of court aims at ensuring that the course of justice is not deflected or interfered with, and not merely preserving the dignity of the courts or their judges.           The Contempt of Court Act 1981 refers to a rule of law whereby conduct tending to interfere with the course of justice may be treated as contempt of court regardless of intent to commit such interference. Limitations on the rule include that it only applies to "active" proceedings, and then only to publications which create a substantial risk that the course of justice, in particular proceedings, will be seriously impeded or prejudiced.   The mere institution of proceedings is not sufficient to activate the rule, as a hearing must have been fixed before the 'strict liability rule' operates.           Defences to the provision include the defence of innocent publication or distribution; a new defence in respect of fair and accurate reporting of legal proceedings held in public, published contemporaneously and in good faith; a provision that a publication is not to be treated as contempt even where it does tend to interfere with the course of justice, in particular legal proceedings if the publication is made as, or as part of, a discussion in good faith of public affairs or other matters of general public interest and that the risk of impediment or prejudice to the particular legal proceedings is merely incidental to the discussion;   existing common law defences are preserved.   3.       Admissibility   a)       "Indirect" victim           The Government contend that as there was no longer any legal connection between the applicant and his wife when "Inside BOSS" was published, even if the former wife is "unable to enter into direct litigation herself for fear of reprisals from the South African Secret Police", this is not a matter which can form part of an admissible claim from the applicant under Article 25 of the Convention. The Government submit that the Convention cannot be interpreted to mean that an application may be considered from someone claiming to be "an indirect victim" on behalf of some other person to whom he has no legal connection and who, herself, is unwilling to make an application under Article 25 of the Convention.   b)       Article 8           The Government dispute the applicant's contention that there is no remedy relating to intrusions of privacy arising from matters published in book form.   The Government state that much of the matter complained of was disclosed by his ex-wife, arguably in breach of the confidence which English law implies into the relationship of marriage.   The word "arguably" is used because it is impossible to predict precisely what would have happened if the matter had been brought before the English courts.   The Government submit, nevertheless, that there would have been compelling reasons for the court to have granted a similar form of injunction as was granted in Argyle v.   Argyle.   Insofar as the applicant did not pursue this remedy, the Government contend that he cannot be regarded as having exhausted his domestic remedies within the meaning of Article 26 of the Convention.   In the alternative, the Government contend that this part of the application discloses no breach of the Convention.           In relation to the disclosure of information relating to the applicant contained in South African police records, the Government draw the Commission's attention to the introduction to "Inside BOSS" which contains a general apology in the following terms:           "Another apology should perhaps go to some of the         individuals named in various excerpts I have taken from         secret BOSS files.   While most of them will no doubt feel         honoured to be on BOSS's hate list, it is important to         emphasise that the BOSS assessment of a person was not         always right.   My use of these BOSS excerpts is, again,         mainly intended to demonstrate the often strange thinking         process of the men who rule 'White' South Africa."           The Government consider that the question to be answered is whether an alleged lack of remedies to prevent the disclosure of the truth (in the absence of breach of confidence) can be described as an unjustified interference with respect for the applicant's right to private life.           The Government make the point that the Government did not "interfere" with the applicant's private life, and refer to the Airey judgment (Eur.   Court H.R., judgment of 9 October 1979, Series A no. 32) in which the Court did not consider that Ireland could be said to have interfered with the applicant's private life, and where the Court also stated that the object of Article 8 is essentially to protect the individual against arbitrary interference by public authorities.   The Govenment note that in the Commission's opinion in the Van Oosterwijck case (Comm.   Report 1.3.79) the Commission considered that Article 8 was "predominantly negative" in the sense that its object was essentially that of protecting individuals against arbitrary interference by public authorities in his private or family life.           Against arguments for the lack of third party effect as implied by Article 8, the Government accept that the Court has considered that there may be positive obligations inherent in that Article, but contend that in determining the scope of any such positive obligation the State has a wide margin of appreciation.           The Government refer to the Sporrong and Lönnroth judgment (Eur.   Court of H.R., judgment of 23 September 1982, Series A no. 52, para. 69) in which the Court commented that the search for balance between the general interest of the community and the protection of individuals' fundamental rights is inherent in the whole Convention. The Government point to the fact that questions regarding the activities of foreign intelligence agents within national territory must be a matter of substantial public interest and the public interest in a publication (rather the suppression) of the truth must be weighed against the embarrassment to the individuals concerned by publication of extracts from foreign police records.           The Government emphasise that paragraph 2 of Article 8 provides for restrictions on the grounds, inter alia, of the protection of the rights and freedoms of others, and that the remedies sought in the present case could have a substantial effect on the right to freedom of expression guaranteed by Article 10 of the Convention.           As to the absence of a right of reply to the allegations made in "Inside BOSS", the Government emphasise first, that the applicant was at liberty to issue a statement as to the allegations made against him without risk of being found in contempt of court, secondly that he did indeed issue such a press statement and finally, that an undertaking to issue a statement could have been part of the terms of settlement of the action against the publishers.   The applicant could also have published the contents of the letter of apology addressed to him by Penguin Books Limited on 20 June 1984.   c)       Article 6           The Government submit that Article 6 para. 1 of the Convention leaves to the State concerned a freedom of choice of the means to be used towads the end of providing effective right of access to the courts and does not place an obligation on the State to provide legal aid for every dispute relating to a "civil right".   The Government further contend that in operating any legal aid system a balance must be struck between the private interests of the individual litigant and the public interest that public money should not be used to finance suits or appeals which are improperly brought or stand no prospects of success.   The Government state that under the Legal Aid Act 1974 an applicant for legal aid must show that he has reasonable ground for taking, defending or being a party to the proceedings in connection with which legal aid is sought, and furthermore, he may be refused legal aid if, in the particular circumstances of the case, it appears unreasonable that he should receive it.   The Government note that in X v. the United Kingdom (No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95 para. 16) the Commission found that legal aid systems can only operate effectively, given the limited resources available, by establishing machinery to select which cases should   be so aided.   Defamation proceedings are excluded from the scope of the Legal Aid Act on the basis that experience has shown that they were among a class of actions in which there was most room for bringing vexatious, frivolous, unmeritorious or unnecessary claims.   In the Government's submission, an interpretation of the Convention which required a State to provide public funds for proceedings of this nature would be fundamentally repugnant, because it would involve the State in a totally unjustifiable use of public money in an area in which resources are, in any event, limited and in which there are other competing claims possessing much greater merit.           The Government note that the applicant in fact secured a settlement which awarded him £5,115.   He thus gained access to court in the sense that he was able to issue the writ and the statement of claim, and the whole action was settled within less than six months from the date of the writ.   The Government contend that the applicant's claim to a sum of £50,000 damages is difficult to substantiate, and it must be doubtful whether the applicant could have recovered damages in respect of the claims even if proceedings had continued.   The Government invite the Commission to decline to speculate on the damages the applicant would have received if he had been legally aided and proceeded to trial.   To do so would be to usurp the function of a national judge (and, in defamation cases such as the present, of the jury, if chosen, as well).           The Government point out that the publishers' position was not as strong as may appear, because they would have had to bear in mind the prospects of defending the action and being unable to recover costs even if they won.   4.       Conclusion           The Government request the Commission to dismiss the applicant's claim to be "an indirect victim" of a breach of Article 8 as incompatible or, alternatively, as manifestly ill-founded.           The Government request the Commission to dismiss the claim under Articles 6 and 8 as incompatible, manifestly ill-founded or not disclosing a breach of the Convention on the facts.     B.       The applicant   1.       General and Factual Submissions           The applicant, through his representatives, states the reasons why his case was fundamentally flawed and why, accordingly, the settlement could not possibly hope to reflect the damage actually suffered by him.   The problems presented an insuperable obstacle for the applicant because, even if told of the existence of the defects, he was not trained and skilful enough to prepare the amendments necessary to cure them and then argue for leave to amend before a High Court Master.   Even if an application to amend the pleadings had been successful, the applicant would still have had to pay the costs of the defendant on the amendment, it having been made by the applicant.   An adjournment and additional costs would have been incurred had the applicant taken the case to the court and requested leave to amend there.   The sympathy courts tend to show to litigants in person could not have extended far enough to remedy these difficulties.           The technical difficulties which beset the applicant were the following:   by not having joined the author of "Inside BOSS" as a defendant, the applicant would no longer have been able to prove malicious intent on the part of the author.   Such proof would have been necessary to negate any defence the publishers may have brought of "fair comment"; problems with obtaining the author's address for service of proceedings would have required further amendments to the statement of claim, which in turn would have required a further application for time for service of an amended statement of claim; because of the way the applicant's statement of claim was worded, he could not plead innuendo in connection with an inference in Chapter 26 of "Inside BOSS" that he was associated with a known terrorist (whilst skilled counsel could perhaps have distinguished the applicant's case from the general rule, the applicant could not hope so to do); the applicant omitted large sections of libellous material from his statement of claim; paragraph 7 of the applicant's statement of claim (relating to innuendo) and the sections dealing with malicious and/or injurious falsehoods were both incorrectly pleaded.   Counsel concluded that the applicant should either appoint a skilled solicitor and counsel or, alternatively, should accept the settlement offered by the publishers.   In reply to these defects in the applicant's case the Government point out that the Court would have had a discretion to allow late amendments, and that the applicant need not have been penalised in costs if the Court had seen fit.           The applicant emphasises that the figure of £50,000 was only in respect of special damage, and that he also sought general damages in respect of loss of reputation, injured feelings and loss of dignity, and exemplary damages.   Had the claim succeeded, the applicant maintains that a successful conclusion to the libel action could have resulted in a award in excess of £50,000.           The applicant states that his press release was a failure because, although the law of contempt may not have fettered its publication, editors and publishers were apprehensive about being in contempt to such a degree that the perceived risks of publication were not outweighed by the news value of the press release.   The applicant's approach to Penguin Books with the proposition that a comprehensive reply to the book "Inside BOSS", and particularly Chapter 26, be published was declined.   2.       Domestic Law and Practice           The applicant submits that, whilst defamation covers some areas within the scope of an individual's rights under Article 8 of the Convention, in many cases defamation does not constitute an adequate remedy.   The applicant states that he did attempt, unsuccessfully, other remedies, in particular, he tried to have proceedings instituted against Gordon Winter under the Offences against the Person Act 1861.   He also tried to have the author of the book extradited to the United Kingdom.           The applicant states that only two limited matters might have given rise to an action for breach of confidence, but that they were both untrue and the doctrine of "confidentiality" would therefore have no application.   Further, he refers to the Law Commission's Report on Breach of Confidence (Cmnd. 8388) in which extensive amendments to the law on breach of confidence were proposed.   3.       Admissibility   a)       "Indirect" Victim           The applicant submits that an intrusion into his former wife's privacy may be a direct breach of his Article 8 rights.   The applicant states that he and his former wife still have a sufficiently close link in their minds and in the minds of others to found the working of an "indirect victim".   b)       Article 8           The applicant points to the incompleteness of the protection of privacy in the United Kingdom, in particular in that covert or indeed open surveillance can be conducted at a distance, recorded on film or video tape or published in a book or newspaper.   Dissemination of the material so recorded is also not prevented.           In regard to the general apology in "Inside BOSS", the applicant states first, that the apology is general, whilst the allegations against the applicant are detailed; and secondly, that the apology criticises BOSS's "assessment" and not the purported factual record of the applicant's history and activities.           On the question of third party effect of the Convention and, particularly, Article 8, the applicant refers to Article 1 of the Convention and states that if the Convention were directly applicable in the United Kingdom, the Government would be responsible for the law's failure to enforce the Article 8 right against the publishers of "Inside BOSS".   The applicant submits that no distinction should be made between the position in one High Contracting Party and another and the Government should therefore provide the legal framework for an accessible legal procedure enforcing the Article 8 right.           The applicant states that if the Government's reading as to the purely negative effect of Article 8 is correct, then that would mean that the Govenment have no positive obligations to ensure "respect" for private and family life, and certainly none in respect of the mass publication and dissemination of gross intrusion into an individual's privacy.           The applicant states that the balance referred to by the Government and contained in the Sporrong and Lönnroth judgment must be achieved by some form of machinery in order to comply with Article 13 of the Convention.   The applicant submits that an author, publisher or investigator should not be the judge of this crucial issue, which should be able to be brought before a court.           With regard to the interaction between Articles 10 and 8 of the Convention, the applicant emphasises that freedom of expression is limited to things in "the public interest".   He accepts that gross intrusions into an individual's private and family life are likely to be of great public interest, but regards the question of whether they are "in the public interest" as entirely different.           As to the applicant's attempt to reply to the allegations in "Inside BOSS" the applicant states, first, that editors and publishers are and were wary of the law of contempt; secondly, that the applicant could not afford to buy advertising space or publish his own pamphlet and, thirdly, that the applicant's press statement lacked the sensational appeal that would interest editors and publishers. Further, the applicant was not in a position to bargain about the terms of the settlement offered by the publishers.   The applicant accepts that a right of reply exists in the passive sense that nothing (save the law of contempt) would prevent a reply, but on the other hand, there is no positive obligation.   The applicant again refers to Article 13 of the Convention.   c)       Article 6           The applicant submits that his case concerned an extraordinarily complex area of law, and that its facts were also of unusual complexity.   He refers to paragraph 26 of the judgment of the Court in the Airey case.   The applicant accepts that checks and balances are necessary in the construction of a system of legal aid, but points out that an absolute bar on the granting of legal aid for even the most meritorious action by a poor plaintiff against a wealthy defendant is tantamount to granting a licence to the unscrupulous to defame and perhaps ruin the impecunious.   The applicant contends that this amounts to a consequential breach of Article 14 of the Convention.   The applicant states that the fact that his libel suit against Penguin Books was as successful as it was, means that his action could not be described as vexatious or frivolous.   The applicant recalls that the Law Society supports the extension of legal aid to some defamation proceedings, and that indeed, the senior partner of the firm of solicitors acting for the publishers of Penguin Books has written to The Times newspaper urging the Government to extend legal aid to defamation proceedings.           With regard to the size of the applicant's pecuniary claim against the publishers of "Inside BOSS", the applicant refers to one recent case in which each of nine plaintiffs received £25,000 in respect of hurt reputation and exemplary damages, and submits that the most recent cases in which derisory damages were granted took place over twenty years ago.   4.       Conclusions           The applicant submits that he is both a direct and an indirect victim of a breach of Article 8 of the Convention.           He denies that the claims under Articles 6 and 8 are incompatible with or manifestly ill-founded under the Convention, and avers that the facts disclose a breach of the Convention.   He requests the Commission to declare the application admissible.     THE LAW   1.       The applicant claims to bring the present application both on his own behalf and as an indirect victim for affronts suffered by his wife.           The Government have contended that the applicant cannot claim to be an indirect victim in respect of his former wife's alleged problems.           The Commission recalls that the general rule concerning the notion of victim is that the person bringing the application must be "the person directly affected by the act or omission which is at issue, the existence of a violation being conceivable even in the absence of prejudice ... " (Eur.   Court H.R., Eckle judgment of 15 July 1982, Series A no. 51 para. 66).   This general rule is, however, subject to variation in certain circumstances, such as a close relationship with an applicant in cases where the applicant may be said himself to have suffered injury as a result of the contested actions and where the direct victim is unable to bring a complaint himself (cf.   No. 7467/76, Dec. 13.12.76, D.R. 8 p. 220).           In the present case, the Commission notes that the applicant is no longer married to his former wife, and it appears that she is in the United Kingdom.           The Commission finds that, to the extent that the applicant purports to bring this application on behalf of his former wife, he has neither shown that he is authorised to do so by her, nor has he shown that she is prevented from bringing an application herself.   To the extent that he complains that the alleged interferences with his former wife's rights, as guaranteed by the Convention, affect his rights, the Commission finds that the applicant has not submitted any substantial evidence which would support this contention.           It follows that this part of the application is incompatible ratione personae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.       The applicant alleges a violation of Article 5 (Art. 5) of the Convention in that his security of person was put at risk by allegations made in the book "Inside BOSS".           The Commission recalls in this connection that the words "liberty and security" must be read together and that they refer to physical liberty and to freedom from arbitrary arrest and detention or a threat thereof (cf.   No. 5573/72, Dec. 16.7.76, D.R. 7 p. 8, Arrowsmith v. the United Kingdom, Comm.   Report 12.10.78, D.R. 19 p. 5 and No. 8334/78, Dec. 7.5.81, D.R. 24 p. 103).   The applicant has not shown that he risked such arbitrary arrest or detention as a result of the action or inaction of the respondent Government.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant alleges a violation of Article 8 (Art. 8) of the Convention in that the publication of "Inside BOSS" involved interferences with his private life and home which could not be remedied under English law.   Article 8 (Art. 8) provides as follows:           "1.      Everyone has the right to respect for his private         and family life, his home and his correspondence.           2.       There shall be no interference by a public authority         with the exercise of this right except such as is in         accordance with the law and is necessary in a democratic         society in the interests of national security, public safety         or the economic well-being of the country, for the         prevention of disorder or crime, for the protection of         health or morals, or for the protection of the rights and         freedoms of others."           The Commission's first task in this respect is to determine, for the purposes of Article 25 (Art. 25) of the Convention, whether the applicant may claim to be a victim of a violation of Article 8 (ARt. 8). In this connection, the Commission notes the settlement which the applicant reached with the publishers of the book, by which he agreed to withdraw the writ he had issued for defamation on payment of £5,000 plus £115 towards his legal costs, together with a letter of apology by which the publishers accepted that the applicant was involved with neither the military wing of the African National Congress nor the South African Communist Party, and that any reflection on his integrity as a journalist was regretted. Accordingly, any complaints which the applicant had which were included in the settlement of the defamation case must be regarded as settled.   However, part of the applicant's complaints consists of the very fact that the English law of defamation is limited in its scope to such an extent that it cannot be regarded as providing adequate protection for private life and home as guaranteed by Article 8 (Art. 8) of the Convention.           In this context, it suffices for the Commission to note the applicant's complaints are not limited to the scope