CEDH · CASELAW;REPORTS;ENG — 8 octobre 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 }    Application No. 14644/89   TIMES NEWSPAPERS Ltd and Andrew NEIL   against   the UNITED KINGDOM   REPORT OF THE COMMISSION   (adopted on 8 October 1991)   TABLE OF CONTENTS                                              Page     I.       INTRODUCTION (paras. 1-15)                    1-3         A.   The application (paras. 2-4)                   1           B.   The proceedings (paras. 5-10)                1-2           C.   The present Report (paras. 11-15)        2-3       II.      ESTABLISHMENT OF THE FACTS (paras. 16-29)           4-9         A.   The particular circumstances of the case       4-8           (paras. 16-26)           B.   The relevant domestic law (paras. 27-29)       8-9       III.     OPINION OF THE COMMISSION (paras. 30-68)       10-18         A.   Complaints declared admissible (para. 30)      10           B.   Points at issue (para. 31)               10           C.   As regards Article 10 of the Convention        10-16           (paras. 32-57)             a)   Interference with freedom of expression      11-12            (paras. 34-39)             b)   Prescribed by law                 12-13            (paras. 40-41)             c)   Legitimate aim                       13            (paras. 42-43)             d)   Necessary in a democratic society       13-16            (paras. 44-56)             Conclusion (para. 57)                   16           D.   As regards Article 13 of the Convention        16-17           (paras. 58-61)             Conclusion (para. 61)                   17       E.   As regards Article 14 of the Convention         17-18           read in conjunction with Article 10           (paras. 62-65)             Conclusion (para. 65)                    18           F.   Recapitulation (paras. 66-68)                  18     Dissenting opinion of Mr.   Loucaides                   19   APPENDIX I       History of the proceedings            20-21   APPENDIX II      Decision on the admissibility           22-30                 of the application I.       INTRODUCTION     1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicants are Times Newspapers Ltd, publishers of The Sunday Times, a national Sunday newspaper published in the United Kingdom, and that newspaper's editor, Andrew Neil, a British citizen, born in 1949 and resident in London.   They were represented before the Commission by Messrs.   Theodore Goddard, Solicitors, London.   3.       The application is directed against the United Kingdom (hereafter abbreviated to UK).   The respondent Government were represented by their Agent, Mr.   M.C. Wood, succeeded by Mrs.   A.F. Glover, both of the Foreign and Commonwealth Office.   4.       The case concerns the applicants' complaint that the House of Lords judgment of 13 October 1988 (Attorney General v.   Guardian Newspapers and Others [1988] 3 WLR to which they were a party) required them to pay partial costs and to account to the Attorney General for any profits made from their publication of an extract from Peter Wright's book "Spycatcher" on 12 July 1987 in The Sunday Times. The application raises issues under Articles 10, 13 and 14 of the Convention.     B.       The proceedings   5.       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.   6.       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. 7.       On 15 April 1991 the applicants submitted certain information about their payment of the Attorney General's costs.   8.       On 26 April 1991 the parties were sent the text of the Commission's decision on admissibility and they were invited to submit such further evidence or information on the merits of the case as they wished.   9.       Further information was provided by the applicants on 4 June 1991.   The Government confirmed on 5 June 1991 the information provided by the applicants on 15 April 1991.   No further information or observations were submitted by the parties.   10.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reactions the Commission now finds that there is no basis on which such a settlement can be effected.     C.       The present Report   11.      The present Report has been drawn up by the Commission in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes in plenary session, 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                 M.P. PELLONPÄÄ   12.      The text of this Report was adopted by the Commission on 8 October 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention. 13.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found           disclose a breach by the State concerned of its           obligations under the Convention.   14.      A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   15.      The pleadings of the parties, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   16.      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 UK.   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.   17.      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 UK 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.   18.      When granting the original injunctions on 11 July 1986 Mr. Justice Millett noted that a special feature of the information contained in "Spycatcher" which distinguished it from information previously disclosed was that it derived directly from a former member of the Security Service:         "It is clear ... that what concerns the Attorney General       is not that the defendants should campaign for an inquiry       into the conduct of the Security Service, nor that they       should expose past misconduct by its members; such matters       have been canvassed before and have received widespread       publicity, and they will again.   The Attorney General's       concern is that it is sought to make use of information       supplied by Mr.   Wright and attributed to him.   The concern       is not with what Mr.   Wright says, but with the fact that       it is a former senior officer of the Security Service       who says it.         But if this is what causes concern to the Attorney General,       it is precisely this which the defendants wish to publish.       They do not wish merely to repeat old allegations, but       to say that they have been corroborated by Mr.   Wright.       Indeed, ... (the defendants) expressly claimed that there       is ... 'a compelling public interest' in the public       knowing, not that allegations have been made of Soviet       penetration of the Security Service at a high level or       of unlawful conduct on the part of members of the Service       in the past, but that it is a senior officer of the Security       Service who makes those allegations and supports them by       evidence derived from his own information acquired by him       while in the Service."   19.      Despite these injunctions the applicants sought to publish serialised extracts from "Spycatcher" before it was published in the United States of America (hereafter abbreviated to USA) on 13 or 14 July 1987.   It had been the applicants' intention to publish an instalment of the book at least a week in advance of the American publication, but the American publication date was brought forward. 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.   20.      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 emphasised that, save in the course of the 1984 Granada T.V. broadcast, none of the allegations that had previously been publicly made about the Security Service had been publicly made by an "insider", i.e. a former employee of MI5 like Mr. Wright.   He also 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."   21.      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."   22.      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 USA publication of the book for its own profit.   23.      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 UK Government would seek to prohibit import of the book into the UK, how effective such a prohibition would be, and that it would be fair to assume that the circulation of the book in the UK might have been relatively small.   24.      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 previously 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."   25.      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. 26.      To date the applicants have not accounted for their profits, but have paid £10,096.84 in costs to the Crown.   On 11 April 1990 the Treasury Solicitor raised the question of the account with the applicants who referred that Office to the fact that the present application had been lodged with the Commission.   The publication of the seralised extracts resumed immediately after the House of Lords judgment in the next edition of The Sunday Times.     B.       The relevant domestic law   27.      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."   28.      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.   29.      Order 62 of the Rules of the Supreme Court 1965 confers an unfettered discretion on courts to award costs at the conclusion of litigation.   It is normal judicial practice to order the loser to pay the costs of the other party to the litigation.   (The Supreme Court Rules were drafted by Judges for the High Court and Court of Appeal and appeared as the First Schedule to the Judicature Act 1875.   They have formed the basis of the Rules as subsequently developed by the judiciary and consolidated by statute.   The 1965 Rules represented a full revision and consolidation of previous Rules and were published as a Statutory Instrument (S.I. 1965 No. 1776).)   III.     OPINION OF THE COMMISSION   A.       Complaints declared admissible   30.      The Commission has declared admissible the applicants' complaints that the House of Lords' orders of 13 October 1988, requiring them to account for profits and to pay partial costs to the Attorney General in the litigation to which they were a party, constituted breaches of Articles 10, 13 and 14 (Art. 10, 13, 14) of the Convention.   B.       Points at issue   31.      The following are the points at issue in the present case:   -        whether the House of Lords' orders against the applicants on 13 October 1988 were in violation of the applicants' freedom of expression ensured by Article 10 (Art. 10) of the Convention;   -        whether the applicants had an effective remedy, pursuant to Article 13 (Art. 13) of the Convention, in respect of their complaints under Articles 10 and 14 (Art. 10, 14);   -        whether the orders also constituted discrimination in violation of Article 14 of the Convention, read in conjunction with Article 10 (Art. 14+10).     C.       As regards Article 10 (Art. 10) of the Convention   32.      Article 10 (Art. 10) of the Convention provides 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 responsibilities, may be subject to       such formalities, conditions, restrictions or penalties       as are prescribed by law and are necessary in a       democratic society, in the interests of national security,       territorial integrity or public safety, for the prevention       of disorder or crime, for the protection of health or       morals, for the protection of the reputation or rights of       others, for preventing the disclosure of information       received in confidence, or for maintaining the authority       and impartiality of the judiciary."   33.      The Commission must proceed to examine whether the orders of the House of Lords on 13 October 1988 requiring the applicants to account for profits and pay partial costs to the Attorney General constituted an interference with their freedom of expression ensured by Article 10 para. 1 (Art. 10-1) of the Convention; if so, whether that interference was prescribed by law and whether it had a legitimate aim or aims.   If this is also found to be the case, the Commission must finally consider whether the interference was necessary, i.e. corresponded to a pressing social need and was proportionate to the pursuit of that or those legitimate aim or aims.   In the background to its examination of the present case are the Commission's Opinions in its Reports in related cases: No. 13166/87, the same applicants, Times Newspapers Ltd. and Andrew Neil, v. the UK, and No. 13585/88, The Observer Ltd. and Others and Guardian Newspapers Ltd. and Others v. the UK (Reports adopted by the Commission on 12 July 1990).         a)   Interference with freedom of expression   34.      The applicants claimed that the House of Lords' judgment of 13 October 1988, insofar as it ordered them to pay part of the Attorney General's costs and to account to him for the profits made from their publication of an extract from "Spycatcher" on 12 July 1987, constituted an interference with their freedom of expression guaranteed by Article 10 para. 1 (Art. 10-1) of the Convention.   35.      The applicants laid emphasis on the fact that the extract from Peter Wright's book "Spycatcher" contained important allegations of serious misconduct by MI5, part of the British Secret Service, allegations of obvious public interest.   The publication of "Spycatcher" in the USA was imminent and the applicants had concluded that any secrecy in its contents had already been irretrievably lost. They submitted, inter alia, that the interference with their freedom of expression by the House of Lords judgment resulted from that court's finding that they had acted unlawfully, which finding in itself amounted to a formality, penalty and interference under Article 10 para. 2 (Art. 10-2) of the Convention.   They also contended that the orders amounted to a penalty, which had a chilling effect on freedom of expression, inhibiting the applicants for the future.   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.   36.      The Government submitted that the judgment did not interfere with the applicants' freedom of expression.   They emphasised the fact that "Spycatcher" had not been published in the USA as of 12 July 1987, or anywhere else in the world.   Although the allegations contained in the book had received some newspaper coverage, such reports were not as long or as detailed as The Sunday Times' extract and not all the material in the book had been previously disclosed. There had been no prior restraint of The Sunday Times' publication of the extract - they had published it.   The fact that they could not publish further extracts for a period was not because of the House of Lords' judgment in question, but because of injunctions on the British media, which were a separate issue dealt with in the applicants' previous case to the Commission, Application No. 13166/87.   After the judgment they were free to publish the remaining extracts.   The applicants have not accounted for profits to date, if indeed there were any profits.   In view of the applicants' efforts to evade Government attention, the extract of 12 July 1987 was published without advance publicity and it seemed that sales of The Sunday Times that day were not greatly increased.   Any profits made were probably therefore minimal.   37.      The Government conceded that an enforced order to account for profits could constitute a penalty and thereby an interference with freedom of expression, within the meaning of Article 10 para. 1 (Art. 10-1) of the Convention.   An account for profits in equity contains a penal element in the sense that it is intended to deprive a wrong-doer of the fruits of his wrongs, but the particular facts of this case, as emphasised above, do not disclose such a penalty and in reality have had no chilling effect on the applicants' freedom of expression.   Nor could the award of partial costs against the applicants amount to such a penalty, being the simple application of a general practice that in all civil cases in the UK, whether or not related to a breach of confidence, the loser pays.   38.      The Commission is of the opinion that there has been an interference with the applicants' freedom of expression in the present case.   The Commission notes the Government's concession that an order to account for profits contains a penal element.   It also notes that the Attorney General has not renounced or waived the House of Lords' order on profits.   Even if those profits might be minimal, the order still stands and could be enforced if the Attorney General wished.   It also notes that the applicants have paid over £10,000 in costs to the Attorney General, as they were required to do by the House of Lords' judgment.   Although the payment of costs is a normal consequence of unsuccessful civil litigation it would be unrealistic to dismiss the deterrent effect of costs' liability in any future exercise of the applicants' freedom of expression on a similar matter.   39.      In sum, the sanction of an account for profits and the liability to pay costs must have a restraining influence on the media's exercise of freedom of expression in areas affected by the law relating to breach of confidence.   In combination they may be said to have constituted a penalty and, thereby, an interference with the applicants' freedom of expression in the present case within the meaning of Article 10 para. 1 (Art. 10-1) of the Convention.         b) Prescribed by law   40.      It is undisputed that the House of Lords' orders against the applicants, requiring them to account for profits and pay the partial costs of the Attorney General, were prescribed by law within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.   41.      The House of Lords noted that Peter Wright, the author of "Spycatcher", had been a member of MI5, part of the British Security Service.   It held that he owed a life-long duty of confidence to the Crown, and, in principle, he was in breach of that duty in publishing "Spycatcher", which constituted his memoirs of his confidential work at MI5.   The applicants, knowing of that duty of confidence, were also bound by it.   Thus, on the basis of the common law relating to confidentiality and to a breach of a duty of confidence, the House of Lords found that the applicants, in publishing an extract from "Spycatcher" on 12 July 1987, had acted unlawfully (cf. paras. 24 and 28 above).   The principles of relief in equity are also part of the common law, and include the possibility of an account for profits, as ordered in the present case, to sanction unjust enrichment from an unlawful act (cf. para. 27 above).   Similarly, a court order requiring the payment of costs by the loser in a civil suit is an established judicial practice based on the unfettered discretion of courts to award costs, pursuant to Order 62 of the Rules of the Supreme Court 1965 (cf. para. 29 above); hence the partial costs order against the applicants.         c)   Legitimate aim   42.      Interference with freedom of expression may only be justified if it pursues a legitimate aim such as protecting the interests of national security, preventing the disclosure of information received in confidence or maintaining the authority of the judiciary.   43.      It is not disputed by the parties that the House of Lords orders fell within the scope of preventing the disclosure of information received in confidence, within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention, by means of depriving the applicants, who had disclosed information in breach of confidence, of any profits they might have derived from that breach.   Moreover, the Commission does not lose sight of the fact that an important background element of the confidentiality question in the present case was the protection of national security, also recognised as a legitimate aim by the second paragraph of Article 10 (Art. 10).   It is clear that one of the issues throughout the "Spycatcher" litigation has been the national security question whether an appearance of confidentiality is essential to the effective operation of a State's security service and whether such efficacy would be impaired if senior officers were known to be free to disclose or publicise what they learned during their service (cf.   No. 13585/88, The Observer Ltd. and Others and Guardian Newspapers Ltd. and Others v. the UK, Comm. Report 12.7.90 paras. 19, 23, 43 quotation (i) (d), 47 and 48).         d)   Necessary in a democratic society   44.      The key issue in the present case is whether it was necessary in the circumstances for the House of Lords to order the applicants to account for profits and pay the partial costs of the Attorney General.   45.      The adjective "necessary" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention is not synonymous with "indispensable" or as flexible as "reasonable" or "desirable", but it implies the existence of a pressing social need.   46.      The notion of necessity implies that the interference of which complaint is made corresponds to this pressing social need, that it is proportionate to the legitimate aim pursued and that the reasons given by the national authorities to justify it are relevant and sufficient (Eur.   Court H.R., Barthold judgment of 25 March 1985, Series A no. 90, pp. 24-25, para. 55).   47.      The initial responsibility for securing Convention rights and freedoms lies with the individual Contracting State.   Accordingly Article 10 para. 2 (Art. 10-2) of the Convention leaves the Contracting State a margin of appreciation, ultimate supervision of whic