European Court of Human Rights
26 November 1991
Facts
The applicants are the publisher and editor of the national Sundays newspaper, The Sunday Times. They complain of interlocutory injunctions imposed by the English courts on the publication of details of the book Spycatcher and information obtained from its author, Mr Peter Wright. An interlocutory injunction is a temporary restriction ordered by a Court, pending the determination of the dispute at the substantive trial. The book Spycatcher was a collection of memoirs from its author, a former senior member of the British Security Service. The book dealt with the operational organisation, methods and personnel of this Service and also included an account of alleged illegal activities by the Security Service. The Attorney General of England and Wales instituted proceedings to restrain publication of Spycatcher, on the ground that the disclosure of such information would constitute a breach of the author’s duty of confidentiality.
Complaint
The applicants alleged that they had been victims of a violation of Article 10 of the Convention which protects freedom of expression, because of the interlocutory injunctions. They relied on the fact that the book had been published in the United States, with the result that the confidentiality of its contents had been destroyed.
Court’s ruling
The Court first found that the injunctions interfered with the applicants’ freedom of expression. These interferences were prescribed by law and had pursued two legitimate aims, maintaining the authority of the judiciary and protecting national security. The question was whether the interference was necessary in a democratic society. The Court recalled the major principles of the Court’s case law, i.e., that prior restraints are not as such prohibited by Article 10 but must be most carefully scrutisined by Court especially when the press is concerned.
Regarding the aim of maintaining the authority of the judiciary, although the publication of the book pending trial could have been prejudicial to the Attorney General’s claim for permanent injunctions, the Court found that this was not a sufficient reason since the confidentiality of the book’s contents had been destroyed by its publication in the United States.
As regards the interests of national security, the Court emphasised that injunctions are normally sought to preserve the secret character of information that ought to be kept secret. However, in this case, the information had already lost that secret character. Therefore, the purpose of the injunctions was instead the promotion of the efficiency and reputation of the Security Service, which were not sufficient aims to justify the interference. The restrictions had prevented newspapers from purveying information, already available, on matters of legitimate public concern, and thus the interference was not necessary. The Court concluded that there had been a violation of Article 10.