CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 avril 1991

.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. 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)