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Publication:A 216
Title:The Observer and Guardian v. The United Kingdom
Application No:13585/88
Respondent:The United Kingdom
Referred by:Commission; Respondent State
Date of reference by Commission:12-10-1990
Date of reference by State:23-11-1990
Date of Judgment:26-11-1991
Conclusion:Violation of article 10
No violation of article 14 jo. 10
Not necessary to examine article 13
Compensation awarded for costs and expenses

The Sunday Times v. The United Kingdom (no.2) and the Observer and Guardian v. The United Kingdom: Both cases concern temporary injunctions imposed in relation to the book "Spycatcher", the memoirs of Mr Peter Wright, a retired member of the British security service living in Australia. The book includes an account of allegedly illegal activities by that service. A part of the material in it had previously been published in the United Kingdom in other books and in television interviews. In September 1985 the Attorney General of England and Wales instituted proceedings in Australia on behalf of the United Kingdom Government to restrain publication of the memoirs. They were eventually published there in October 1987, after the Court of Appeal of New South Wales had given judgment in favour of the author and his publishers.

In June 1986 short articles appeared in the Observer and The Guardian giving details of some of the contents of the book. The Attorney General thereupon instituted proceedings in England against the applicants in the Observer and Guardian case for breach of confidence. He obtained interlocutory injunctions on 11 July 1986 the broad effect of which was to prevent those applicants, pending the trial of the actions, from publishing further details about the allegedly unlawful activities of the secret service described in "Spycatcher" or further information originating from the author and obtained by him in his capacity as a member of that service. In April 1987, after summaries of some of Mr Wright's allegations had appeared in three British newspapers (not those involved in the present cases), the applicants applied for discharge of the injunctions. In mid-July the book was published in the United States of America, where it was a bestseller. A substantial number of copies were purchased by United Kingdom residents, no attempt being made by the Government to prevent its importation. Just before the publication in America, the first instalment of extracts from the book appeared in The Sunday Times, which had purchased the British serialization rights. This led to the institution by the Attorney General against the applicants in the Sunday Times case of proceedings for contempt of court and, subsequently, for breach of confidence.

On 30 July 1987 the House of Lords decided, by a majority, to continue the injunctions against the applicants in the Observer and Guardian case. By virtue of the law of contempt of court, the injunctions bound the whole of the British media and, notably, prevented the applicants in the Sunday Times case from publishing further extracts from "Spycatcher". In the meantime and subsequently, the book was published in a number of countries other than the United Kingdom and dissemination of it and its contents continued worldwide. The injunctions remained in force until 13 October 1988 when, at the conclusion of the proceedings on the merits of the Attorney General's actions, the House of Lords, inter alia, rejected his claims for permanent injunctions against the applicants.

The Court first held that the interference in the applicants' right to freedom of expression was prescribed by law and had a legitimate aim. In addressing the question whether the interference was "necessary in a democratic society", both judgments began by recalling the major principles enunciated in the Court's case-law on Article 10. As regards the "necessity" for the restrictions in the period fro 11 July 1986 to 30 July 1987, the Court noted that, when they first were imposed, one of the applicants wished to publish further information deriving from Mr Wright and revealing alleged unlawful activity by the Security Service. Furthermore, there was a risk that his memoirs (which in July 1986 existed only in manuscript form) would contain disclosures detrimental to the Service and it was improbable that all their contents would raise questions of public concern outweighing the interests of national security. In granting the temporary injunctions, the English courts had relied on relevant reasons (namely, that publication of the material in question before the trial of the Attorney General's actions would effectively destroy their substance and, with it, the claim to protect national security) and had carefully weighed the conflicting interests. In the light of the nature and possible contents of the book, the interests of national security involved and the potential prejudice to the Attorney General, those courts were, having regard to their margin of appreciation, entitled to consider it necessary to grant injunctive relief and their reasons for so concluding were sufficient. Finally, the actual restraints imposed were proportionate to the aims pursued. The Court thus concluded, by fourteen votes to ten, that in this first period, the national authorities had been entitled to think that the interference was "necessary".

As regards the period from 30 July 1987 to 13 October 1988, the Court considered that the potential prejudice to the Attorney General's actions was not sufficient reason for maintaining the temporary injunctions since, even if he succeeded in obtaining permanent ones, they would have borne on material the confidentially of which had been destroyed by the publication of Spycatcher in the United States. Neither were the national security interests relied on sufficient: the purpose of the restrictions had, since the material in question was no longer secret, become confined to the promotion of the efficiency and reputation of the Security Service and their continuation prevented newspapers from purveying information, already available, on a matter of legitimate public concern. The Court thus concluded unanimously that, in this second period, the interference had not been "necessary" and both the applicants had been victims of a violation of Article 10. The Court did not find a violation of Article 14 in conjunction with Article 10 and unanimously dismissed the allegations of a violation of Article 13. Finally, under Article 50 of the Convention, the Court accepted , but only in part, the applicants claims for reimbursement of the costs and expenses they had occurred in the domestic and the Strasbourg proceedings.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)