69. 13, art. 30, p. 34, para. On the same day the Vice-Chancellor granted a temporary injunction restraining publication by S.T. "Secret agents" often publish their memoirs after their retirement and this does not in general give cause for concern to the States in question. 24, pp. The public has a right to be promptly informed on such matters, irrespective of whether a report is made to the proper authorities with a view to prosecution and punishment. The two Law Lords who dissented from the decision of the House of Lords of 30 July 1987 expressed their views on this point. "49. As directed by the President, the hearing, devoted to the present and the Sunday Times (no.2) cases, took place in public in the Human Rights Building, Strasbourg, on 25 June 1991. (ii) (Lord Griffiths dissenting) that the articles of 22 and 23 June [1986] had not contained information damaging to the public interest; that the Observer and The Guardian were not in breach of their duty of confidentiality when they published [those] articles; and that, accordingly, the Crown would not have been entitled to a permanent injunction against both newspapers. The interlocutory injunction issued by Mr Justice Millett in July 1986, based on a failure to comply with the duty of discretion, already constituted in my view an infringement of the freedom of expression. The countries of Eastern Europe which have thrown off the shackles of totalitarian rule have well understood this. Seen in terms of the protection of the Attorney General's rights as a litigant, the interest in maintaining the confidentiality of that material had, for the purposes of the Convention, ceased to exist by 30 July 1987 (see, mutatis mutandis, the Weber judgment of 22 May 1990, Series A no. 30), and especially paragraph 49 thereof, the Court entertains no doubt that they were formulated with a degree of precision that is sufficient in a matter of this kind. 10). As such, this is a legitimate aim. On 11 May, in response to the Vice-Chancellor's invitation, the Attorney General pursued the proceedings in the Independent case in the Chancery Division of the High Court and the Vice-Chancellor ordered the trial of the preliminary issue. 116, p. 25, para. On 14 May 1987 Viking Penguin Incorporated, which had purchased from Mr Wright's Australian publishers the United States publication rights to Spycatcher, announced its intention of publishing the book in the latter country. who had to apply for their discharge, the conclusion must be that the standard used by the national judge for deciding whether or not to impose a prior restraint was: an interim injunction sought for the purpose of preserving confidentiality should be granted unless the defendant satisfies the court that (a) disclosure is in the public interest and (b) this interest outweighs the interest in preserving confidentiality. In his very thorough judgment of 21 December 1987 Mr Justice Scott said: "It is equally unacceptable that the government's assertion of what national security requires should suffice to decide the limitations that must be imposed on freedom of speech or of the press"; "In my view the articles represented the legitimate and fair reporting of a matter that the newspapers were entitled to place before the public, namely the court action in Australia"; and he concluded categorically: "The Guardian and the Observer were not in breach of confidence in publishing the articles about the Australian Spycatcher case in their respective editions of 23 June 1986 and 22 June 1986." 5. Case of the Observer and Guardian v. the United Kingdom (51/1990/242/313) : judgment. 10) (see, mutatis mutandis, the Granger judgment of 28 March 1990, Series A no. The other leading decisions of that Court, such as those in New York Times Co. Ltd v. the U.S., 403 U.S./713 (1971) (the Pentagon Papers case), Landmark Communications Inc. v. Virginia, 425 U.S./829 (1978) (the Landmark case), Nebraska Association v. Stuart, 427 U.S./ 593 (1976) and U.S. v. The Progressive, 486 F. supp. 6 Justice Black, joined by Justice Douglas, in the case, very similar to the present one, of the Pentagon Papers, New York Times v. U.S. and U.S. v. Washington Post (1971), 403 U.S. 713, at 717. 10) of the Convention. were given liberty to apply for variation or discharge if any undue delay arose. was the protection of an important public interest, namely the maintenance as far as possible of the secrecy of the Security Service; as was recognised in Article 10 para. The Government have recalled the Court's observation, in its markt intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989 (Series A no. (f) S.T., on the other hand, had been in breach of the duty of confidentiality in publishing the first instalment of extracts from the book on 12 July 1987 (see paragraph 27 above), since those extracts contained certain material which did not raise questions of public interest outweighing those of national security. 10)? The learned judge failed, however, to do so and therefore cannot be said to have based his decision on an acceptable assessment of the relevant facts (see paragraph 6 above). 98, p. 47, para. Although such a measure is not obligatory, it is nevertheless highly desirable with a view to ensuring not only better knowledge of the Convention but certainly also a more complete implementation thereof. 10-2). Publisher: Strasbourg : The Court, [1991] allegedly to protect national security are very far from fulfilling these standards. The Commission's request referred to Articles 44 and 48 (art. The same line of thought is reflected in the words of Mr Redwood, a United Kingdom Secretary of State, when he gave vent to his anxiety concerning the "current flood of restrictive directives from the EEC which threatens the freedom of expression" (Le Monde, 3 November 1991). [7] Article 15 (art. (d) The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 (art. The Attorney General was seeking a permanent ban on the publication of material the disclosure of which would, according to the credible evidence presented on his behalf, be detrimental to the Security Service; to refuse interlocutory injunctions would mean that O.G. 2 (art. 10-2) even during the period from 11 July 1986 to 30 July 1987. On 15 July 1987 the Court of Appeal announced that it would reverse the judgment of the Vice-Chancellor in the Independent case (see paragraph 25 above). 11.3 Thus, the standard used unduly tipped the balance in advance in favour of the Attorney General, the party who was seeking to restrict freedom of expression. (a) As regards foreseeability, O.G. A substantial number of copies of the book were then brought into the United Kingdom, notably by British citizens who had bought it whilst visiting the United States or who had purchased it by telephone or post from American bookshops. These two newspapers had for some time been conducting a campaign for an independent investigation into the workings of the Security Service. The Court has examined this issue in the light of the criteria established in its case-law and of the observations submitted by the Government and the applicants. 1) of the Convention, particularly in the French text. He concluded that if "a third party who is not a participator in the confidant's breach of duty receives information which at the time of receipt is in the public domain - that is to say, he gets it from the public domain - in my judgment he would not, as at present advised, come under any duty of confidence" (ibid., 1265E). In forming its own opinion, the Court has borne in mind its observations concerning the nature and contents of Spycatcher (see paragraph 61 above) and the interests of national security involved; it has also had regard to the potential prejudice to the Attorney General's breach of confidence actions, this being a point that has to be seen in the context of the central position occupied by Article 6 (art.
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