CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 octobre 1989

.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 }                          AS TO THE ADMISSIBILITY OF                           Application No. 13490/88                         by G.S.                         against the United Kingdom           The European Commission of Human Rights sitting in private on 9 October 1989, the following members being present:                   MM.   C.A. NØRGAARD, President                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 M.    C.L. ROZAKIS                 Mr.   L. LOUCAIDES                   Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 23 October 1987 by G.S. against the United Kingdom and registered on 6 January 1988 under file No. 13490/88;           Having regard to:        -   reports provided for in Rule 40 of the Rules of Procedure         of the Commission;        -   the Commission's decision of 7 October 1988 to bring the         application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government         on 27 January 1989 and the observations in reply submitted         by the applicant on 26 April 1989;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a citizen of the United Kingdom, born in 1938 and resident in Stoke-on-Trent.   He is a Member of the European Parliament by profession.           The facts, as submitted by the parties, may be summarised as follows:           A former member of the British Secret Services, Mr.   Peter Wright, wrote a book called "Spycatcher" in which he disclosed some of the internal workings of the Secret Services based on classified and sensitive information to which he had access during his employment. His intention was to publish the book in Australia but the Attorney General of the United Kingdom brought proceedings in Australia to prevent publication of the book.   Various British newspapers, including the Observer, Guardian and Sunday Times, sought to inform their readers about the book and the Australian court proceedings. However, the Attorney General obtained injunctive relief to restrain such publication.   These interlocutory proceedings terminated with a decision of the House of Lords on 30 July 1987, the reasons being delivered in judgment on 13 August 1987.   The House of Lords granted temporary injunctions pending trial of the substantive issues in the United Kingdom, which injunctions prohibited British newspapers from           "1.    disclosing or publishing or causing or permitting to         be disclosed or published to any person any information         obtained by Peter Maurice Wright in his capacity as a         member of the British Security Service and which they know,         or have reasonable grounds to believe, to have come or been         obtained, whether directly or indirectly, from the said         Peter Maurice Wright;           2.     attributing in any disclosure or publication made by         them to any person any information concerning the British         Security Service to the said Peter Maurice Wright whether         by name or otherwise."           The injunctions also contained the following provisos:           "1.    this Order shall not prohibit direct quotation of         attributions to Peter Maurice Wright already made by         Mr.   Chapman Pincher in published works, or in a television         programme or programmes broadcast by Granada Television;           2.     no breach of this Order shall be constituted by the         disclosure or publication of any judgment given in open         court in the New South Wales action No. 4382 of 1985;           3.     no breach of this Order shall be constituted by a         fair and accurate report of proceedings in           (a)    either House of Parliament in the United Kingdom         whose publication is permitted by that House; or           (b)    a court in the United Kingdom sitting in public."           Before the Commission the applicant objected to the second proviso which amended earlier temporary injunctions allowing the reporting of information disclosed in open court in the Australian proceedings unless its disclosure was prohibited there.   The intention of the House of Lords in limiting the reporting of the Australian proceedings was to ensure that the interlocutory injunctions were not circumvented by the publication of any extracts from "Spycatcher" which might have been read out in open court in Australia on the pretext of reporting legal proceedings.           There was in fact extensive reporting of the remaining Australian proceedings in the British press.   These proceedings consisted of the hearing of the Court of Appeal of New South Wales from 27 July until 31 July 1987 and its judgment of 24 September 1987 dismissing the Attorney General's appeal, which decision was upheld by the High Court of Australia on 2 June 1988, after having heard the case from 8 until 10 March 1988.   During these proceedings no attempt was made to read out parts of "Spycatcher" in open court.   In the meantime the substantive trial of the Attorney General's application for permanent injunctions against The Observer and The Guardian took place before the English High Court during the latter part of November and early December 1987.   On 21 December 1987 Scott J. dismissed the actions, discharged the injunctions against these two newspapers, but found that The Sunday Times had been in breach of duty for publishing an extract from "Spycatcher" on 12 July 1987.   This decision was upheld by the Court of Appeal on 10 February 1988 and the House of Lords on 13 October 1988.   Although Scott J. and the Court of Appeal maintained the temporary injunctions pending completion of the English appeal proceedings, the Government contended that in effect they restored the original proviso of the temporary injunctions which permitted the unrestricted reporting of the Australian proceedings. Thus the House of Lords' proviso of 30 July / 13 August 1987 had no effect on the reporting of the Australian Court of Appeal hearing from 27 to 31 July 1987 and had been effectively removed by the English Court of Appeal in February 1988 before the High Court of Australia heard the final appeal in that country in March 1988.   The applicant maintained, however, that the House of Lords' proviso had the effect of restraining the newspaper reporting of the Australian proceedings.           "Spycatcher" had been published in the United States of America in July 1987 and thereafter throughout the world, including many countries in Western Europe.   No ban on the importation of the book was imposed by the United Kingdom Government.   COMPLAINTS           The applicant complained that he was a victim of a violation of Article 10 of the Convention, in particular his right to receive information regardless of frontiers, as regards the proviso imposed by the House of Lords in July/August 1987 limiting English newspaper reporting of the Australian "Spycatcher" proceedings to the "disclosure or publication of any judgment given in open court".   He contended that the honest reporting of open court proceedings could not have posed a threat to national security, territorial integrity or public safety, especially as the book itself was readily available in the United Kingdom.   Nor could it have posed a threat to the other legitimate interests protected by Article 10 para. 2 of the Convention.   He stated that he had no domestic remedy available to him to challenge the House of Lords' decision.   He stressed that it was the effective censorship on the reporting of the Australian court proceedings about which he complained.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 23 October 1987 and registered on 6 January 1988.           After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 7 October 1988.   It decided, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit their written observations on admissibility and merits.   The Government's observations were submitted on 27 January 1989, to which the applicant replied on 26 April 1989.   THE LAW           The applicant has complained of the interim injunction imposed by the House of Lords in its decision of 30 July / 13 August 1987, which purportedly limited newspaper reporting of the Australian "Spycatcher" proceedings to the disclosure or publication of any judgment given in open court.   He claimed thereby to be a victim of a violation of Article 10 (Art. 10) of the Convention, the relevant part of which reads as follows:           "1.   Everyone has the right to freedom of expression.   This         right shall include freedom to hold opinions and to receive         and impart information and ideas without interference by         public authority and regardless of frontiers ....           2.    The exercise of these freedoms, since it carries with         it duties and responsibiities, may be subject to such         formalities, conditions, restrictions or penalties as are         prescribed by law and are necessary in a democratic society         ... for the protection of ... the rights of others, ... or         for maintaining the authority ... of the judiciary."           The applicant contended that the aforementioned measure was intended to restrain reporting of the Australian proceedings and to intimidate the British press into publishing incomplete reports about them.   He thereby was unable to receive full information on these matters.   He claimed that it cannot have been justified to prevent extracts of the book reaching the public as the whole book was easily available to anyone who wished to buy it from abroad.   Whilst there may be millions of other British newspaper readers whose freedom of expression was thus abrogated, the applicant submitted that his complaint is not an actio popularis, for he is speaking for himself in defence of his own Article 10 (Art. 10) rights.   He submitted that the interference with his freedom of expression could not be justified, the full, honest reporting of the Australian proceedings representing no threat to the interests protected by the second paragraph of Article 10 (Art. 10) of the Convention.           The Government replied that the injunction imposed by the House of Lords did not restrict bone fide reporting of the Australian proceedings, but only the repetition of verbatim extracts of "Spycatcher" which might have been read out in open court.   This was borne out by the continued extensive coverage of the Australian proceedings in the British press at the material time.   As it turned out, the House of Lords' reporting proviso had no practical incidence because it was issued too late to restrict reporting of the hearing before the Court of Appeal of New South Wales and had been lifted by the English Court of Appeal before the final hearing was held in the High Court of Australia.   The Government considered that in these circumstances the applicant could not be considered to be a victim of a violation of Article 10 (Art. 10) of the Convention as he had not been remotely or directly affected by the House of Lords' decision.   There was no evidence that the applicant or any other member of the British newspaper reading public, was denied information about the Australian proceedings.   Alternatively, the Government submitted that, if there had been an interference with the applicant's freedom of expression, it was prescribed by law and necessary in a democratic society for the protection of the rights of others and/or for maintaining the authority of the judiciary, within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.           The Commission has examined the particular facts of the case and notes that the House of Lords' proviso in question had no practical incidence on the reporting of the Australian "Spycatcher" proceedings.   If the applicant had needed details about the book he could have obtained it himself for, as he acknowledges, it was readily available, no ban on its importation into the United Kingdom having been imposed by the Government.   The Commission finds that the applicant has not substantiated his claim that there has been an interference with his freedom of expression ensured by Article 10 para. 1 (Art. 10-1) of the Convention.   In these circumstances the Commission concludes that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          President of the Commission                  (H.C. KRÜGER)                       (C.A. NØRGAARD)