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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Attorney General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6 (13 October 1988) URL: http://www.bailii.org/uk/cases/UKHL/1988/6.html Cite as: [1987] 1 WLR 776, [1990] AC 109, [1988] UKHL 6, [1987] WLR 776, [1990] 1 AC 109, [1988] 3 All ER 545 |
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Parliamentary
Archives,
HL/PO/JU/18/248
Her Majesty's Attorney General (Appellant)
v.
The
Observer Limited and others (Respondents)
JUDGMENT
Die Jovis 13° Octobris 1988
Upon Report from the Appellate Committee to
whom was
referred the Cause Her Majesty's Attorney General against
The
Observer Limited and others, That the Committee had
heard
Counsel on Tuesday the 14th, Wednesday the 15th, Thursday
the
16th, Monday the 20th, Wednesday the 22nd and Thursday
the
23rd days of June last, upon the Petition and Appeal of
Her
Her Majesty's Attorney General, of the Royal Courts
of
Justice, Strand, London, WC2, praying that the matter of
the
Order set forth in the Schedule thereto, namely an Order
of
Her Majesty's Court of Appeal of the 10th day of February
1988,
as amended on the 14th and 31st days of March 1988,
might be
reviewed before Her Majesty the Queen in Her Court of
Parliament
and that the said Order might be reversed, varied
or altered or
that the Petitioner might have such other relief
in the premises
as to Her Majesty the Queen in Her Court of
Parliament might seem
meet; as upon the case of The Observer
Limited, Donald Trelford,
David Leigh, Paul Lashmar, Guardian
Newspapers Limited, Peter
Preston and Richard Norton Taylor,
lodged in answer to the said
appeal; and due consideration had
this day of what was offered on
either side in this Cause:
It is Ordered and Adjudged, by
the Lords Spiritual and
Temporal in the Court of Parliament of Her
Majesty the Queen
assembled, That the said Order of Her Majesty's
Court of
Appeal of the 10th day of February 1988, as amended on
the
14th and 31st days of March 1988, complained of in the
said
Appeal be, and the same is hereby, Affirmed and that
the said
Petition and Appeal be, and the same is hereby, dismissed
this
House: And it is further Ordered, That the Appellant
do pay
or cause to be paid to the said Respondents the Costs
incurred
by them in respect of the said Appeal, the amount thereof
to
be certified by the Clerk of the Parliaments if not
agreed
between the parties.
Cler: Parliamentor:
Judgment: 13.10.88
HOUSE OF LORDS
HER
MAJESTY'S ATTORNEY GENERAL
(APPELLANT)
v.
THE
OBSERVER LIMITED AND OTHERS
(RESPONDENTS)
HER
MAJESTY'S ATTORNEY GENERAL
(ORIGINAL APPELLANT AND
CROSS-RESPONDENT)
v.
THE TIMES
NEWSPAPERS LIMITED AND ANOTHER
(ORIGINAL RESPONDENTS AND
CROSS-APPELLANTS)
(CONJOINED APPEALS)
Lord
Keith of Kinkel
Lord Brightman
Lord Griffiths
Lord Goff of
Chieveley
Lord Jauncey
of Tullichettle
LORD
KEITH OF KINKEL
My Lords,
From 1955 to 1976 Peter Wright was
employed in a senior
capacity by the counter-espionage branch of
the British Security
Service known as M.I.5. In that capacity he
acquired knowledge of
a great many matters of prime importance to
the security of the
country. Following his retirement from the
service he went to
live in Australia and later formed the
intention of writing and
publishing a book of memoirs describing
his experiences in the
service. He wrote the book in association
with a man named Paul
Greengrass, and it was accepted for
publication by Heinemann
Publishers Pty. Ltd., the Australian
subsidiary of a well known
English publishing company. The
Attorney-General in right of the
Crown, learning of the intended
publication of the book, instituted
in 1985 proceedings in New
South Wales against Mr. Wright and
Heinemann Publishers claiming
an injunction to restrain the
publication in Australia or
alternatively an account of profits.
Pending trial, Mr. Wright,
the publishers and their solicitors gave
undertakings not to
reveal the contents of the book. The
Attorney-General's action
failed before Powell J. and again before
the Court of Appeal of
New South Wales. Special leave to appeal
was granted by the High
Court of Australia, but the respondents
were released from their
undertakings. So the book was published
in Australia on 13 October
1987, under the title of Spycatcher.
On 2 June 1988 the
High Court dismissed the Attorney-General's
appeal upon the sole
ground that an Australian court should not
accept jurisdiction to
enforce an obligation of confidence owed to
a foreign government
so as to protect that government's
intelligence secrets and
confidential political information. In the
- 1 -
meantime
Spycatcher had on 14 July 1987 been published in the
United
States of America by Viking Penguin Inc., a subsidiary of
an
English publishing company. Her Majesty's Government had
been
advised that, in view of the terms of the First Amendment
to the
United States Constitution, any attempt to restrain
publication
there would be certain to fail. Publication also took
place in
Canada, the Republic of Ireland, and a number of other
countries.
Her Majesty's Government decided that it was
impracticable and
undesirable to take any steps to prevent the
importation into the
United Kingdom of copies of the book, and a
very substantial
number of copies have in fact been imported. So
the contents of
the book have been disseminated world wide and
anyone in this
country who is interested can obtain a copy without
undue
difficulty.
The earlier history of the
litigation in England of which the
present appeals are the
culmination, is set out in the judgment of
Scott J. [1988] 2
W.L.R. 805, 814-819. There is no need to
recapitulate it. The
issues raised in the litigation are thus
summarised in the
judgment of Sir John Donaldson M.R. in the
Court of Appeal [1988]
2 W.L.R. 805, 871;
"(1) Were the 'Observer' and
'The Guardian' in breach of
their duty of confidentiality when, on
22 and 23 June
1986, they respectively published articles on
the
forthcoming hearing in Australia? If so, would they
have
been restrained from publishing if the Attorney-
General had been
able to seek the assistance of the
court? . . .
Was 'The Sunday Times' in
breach of its duty of
confidentiality when, on 12 July
1987 it published the
first extract of an
intended serialisation of
Spycatcher? . . .
Is the Attorney-General now
entitled to an injunction
(a) in relation to the
'Observer' and 'The Guardian'
and (b) in relation to 'The
Sunday Times' with special
consideration to further
serialisation? . . .
Is the Attorney-General entitled
to an account of the
profits accruing to 'The Sunday Times' as a
result of
the serialisation of Spycatcher? . . .
Is the Attorney-General
entitled to some general
injunction restraining future
publication of information
derived from Mr. Wright or
other members or ex-
members of the Security Service? ..."
As regards issue (1) Scott J. and
the majority of the Court
of Appeal (Dillon and Bingham LL.J., Sir
John Donaldson M.R.
dissenting) held that the publication of the
articles in question was
not in breach of an obligation of
confidence.
On issue (2) Scott J. and the
majority of the Court of
Appeal (Bingham L.J, dissenting) held
that the publication of the
first extract from Spycatcher
was in breach of an obligation of
confidence.
- 2 -
Upon issue (3) Scott J. and the
Court of Appeal held that
the Attorney-General was not entitled to
an injunction against the
"Observer" and "The
Guardian" nor (Sir John Donaldson M.R.
dissenting) against
further serialisation of Spycatcher by 'The
Sunday Times."
As to issue (4) Scott J. and the
majority of the Court of
Appeal (Bingham L.J. dissenting) decided
this in favour of the
Attorney-General.
Issue (5) was decided against the
Attorney-General both by
Scott J. and by the Court of Appeal.
The Attorney-General now appeals
to your Lordships' House
upon all the issues on which he failed
below. "The Sunday Times"
cross-appeals against the
decision on account of profits.
The Crown's case upon all the
issues which arise invokes the
law about confidentiality. So it is
convenient to start by
considering the nature and scope of that
law. The law has long
recognised that an obligation of confidence
can arise out of
particular relationships. Examples are the
relationships of doctor
and patient, priest and penitent,
solicitor and client, banker and
customer. 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: Saltman
Engineering Co. Ltd, v. Campbell Engineering
Co. Ltd. (1948)
65 R.P.G. 203. It is worthy of some examination
whether or not
detriment to the confider of confidential
information is an
essential ingredient of his cause of action in
seeking to restrain
by injunction a breach of confidence.
Presumably that may be so as
regards an action for damages in
respect of a past breach of
confidence. If the confider has
suffered no detriment thereby he
can hardly be in a position to
recover compensatory damages.
However, the true view may be
that he would be entitled to nominal
damages. Most of the cases
have arisen in circumstances where
there has been a threatened or
actual breach of confidence by an
employee or ex-employee of the
plaintiff, or where information
about the plaintiff's business affairs
has been given in
confidence to someone who has proceeded to
exploit it for his own
benefit: an example of the latter type of
case is Seager v.
Copydex Ltd. [1967] 1 W.L.R. 923. In such cases
the detriment to
the confider is clear. In other cases there may
be no financial
detriment to the confider, since the breach of
confidence involves
no more than an invasion of personal privacy.
Thus in Duchess
of Argyll v. Duke of Argyll [1967] Ch. 302 an
injunction was
granted against the revelation of marital
confidences. The right
to personal privacy is clearly one which
the law should in this
field seek to protect. If a profit has been
made through the
revelation in breach of confidence of details of
a person's
private life it is appropriate that the profit should be
accounted
for to that person. Further as a general rule it is in
the public
interest that confidences should be respected, and the
encouragement
of such respect may in itself constitute a sufficient
ground for
recognising and enforcing the obligation of confidence
even where
the confider can point to no specific detriment to
himself.
Information about a person's private and personal affairs
may be
of a nature which shows him up in a favourable light and
would by
no means expose him to criticism. The anonymous donor
- 3 -
of a very large sum to a very
worthy cause has his own reasons
for wishing to remain anonymous,
which are unlikely to be
discreditable. He should surely be in a
position to restrain
disclosure in breach of confidence of his
identity in connection
with the donation. So I would think it a
sufficient detriment to
the confider that information given in
confidence is to be disclosed
to persons whom he would prefer not
to know of it, even though
the disclosure would not be harmful to
him in any positive way.
The position of the Crown, as
representing the continuing
government of the country may,
however, be regarded as being
special. In some instances
disclosure of confidential information
entrusted to a servant of
the Crown may result in a financial loss
to the public. In other
instances such disclosure may tend to
harm the public interest by
impeding the efficient attainment of
proper governmental ends, and
the revelation of defence or
intelligence secrets certainly falls
into that category. The Crown,
however, as representing the nation
as a whole, has no private life
or personal feelings capable of
being hurt by the disclosure of
confidential information. In so
far as the Crown acts to prevent
such disclosure or to seek
redress for it on confidentiality grounds,
it must necessarily, in
my opinion, be in a position to show that
the disclosure is likely
to damage or has damaged the public
interest. How far the Crown
has to go in order to show this must
depend on the circumstances
of each case. In a question with a
Crown servant himself, or
others acting as his agents, the general
public interest in the
preservation of confidentiality, and in
encouraging other Crown
servants to preserve it, may suffice. But
where the publication is
proposed to be made by third parties
unconnected with the
particular confidant, the position may be
different. The Crown's
argument in the present case would go the
length that in all
circumstances where the original disclosure has
been made by a
Crown servant in breach of his obligation of
confidence any person
to whose knowledge the information comes
and who is aware of the
breach comes under an equitable duty
binding his conscience not to
communicate the information to
anyone else irrespective of the
circumstances under which he
acquired the knowledge. In my opinion
that general proposition is
untenable and impracticable, in
addition to being unsupported by
any authority. The general rule
is that anyone is entitled to
communicate anything he pleases to
anyone else, by speech or in
writing or in any other way. That
rule is limited by the law of
defamation and other restrictions
similar to these mentioned in
article 10 of the Convention for the
Protection of Human Rights
and Fundamental Freedoms (1953) (Cmd.
8969). All those
restrictions are imposed in the light of
considerations of public
interest such as to countervail the
public interest in freedom of
expression. A communication about
some aspect of government
activity which does no harm to the
interests of the nation cannot,
even where the original disclosure
has been made in breach of
confidence, be restrained on the ground
of a nebulous equitable
duty of conscience serving no useful
practical purpose.
There are two important cases in
which the special position
of a government in relation to the
preservation of confidence has
been considered. The first of them
is Attorney-General v.
Jonathan Cape Ltd. [1976] Q.B. 752.
That was an action for
injunctions to restrain publication of the
political diaries of the
late Richard Grossman, which contained
details of Cabinet
- 4 -
discussions held some ten years
previously, and also of advice
given to Ministers by civil
servants. Lord Widgery C.J. said at pp.
770-771:
"In these actions we are
concerned with the publication of
diaries at a time when 11 years
have expired since the first
recorded events. The Attorney-General
must show (a) that
such publication would be in breach of
confidence; (b) that
the public interest requires that the
publication be
restrained, and (c) that there are no other facts
of the
public interest contradictory of and more compelling
than
that relied upon. However, the court, when asked to
restrain
such a publication, must closely examine the extent
to which
relief is necessary to ensure that restrictions are
not imposed
beyond the strict requirement of public need."
Lord Widgery went on to say that
while the expression of
individual opinions by Cabinet Ministers
in the course of Cabinet
discussions were matters of confidence,
the publication of which
could be restrained by the court when
clearly necessary in the
public interest, there must be a limit in
time after which the
confidential character of the information
would lapse. Having read
the whole of volume one of the diaries he
did not consider that
publication of anything in them, ten years
after the event, would
inhibit full discussion in the Cabinet at
the present time or
thereafter, or damage the doctrine of joint
Cabinet responsibility.
He also dismissed the argument that
publication of advice given by
senior civil servants would be
likely to inhibit the frankness of
advice given by such civil
servants in the future. So in the result
Lord Widgery's decision
turned on his view that it had not been
shown that publication of
the diaries would do any harm to the
public interest.
The second case is Commonwealth
of Australia v. John
Fairfax & Sons Ltd. (1980) 147 C.L.R.
39. That was a decision of
Mason J. in the High Court of
Australia, dealing with an
application by the Commonwealth for an
interlocutory injunction to
restrain publication of a book
containing the texts of government
documents concerned with its
relations with other countries, in
particular the government of
Indonesia in connection with the
"East Timor Crisis."
The documents appeared to have been leaked
by a civil servant.
Restraint of publication was claimed on the
ground of breach of
confidence and also on that of infringement of
copyright. Mason J.
granted an injunction on the latter ground but
not on the former.
Having mentioned at p. 51 an argument for
the Commonwealth that
the government was entitled to protect
information which was not
public property, even if no public
interest is served by
maintaining confidentiality, he continued at
pp. 51-52:
"However, the plaintiff must
show, not only that the
information is confidential in quality and
that it was
imparted so as to import an obligation of confidence,
but
also that there will be 'an unauthorised use of
that
information to the detriment of the party communicating
it'
(Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41,
at p.
47). The question then, when the executive government
seeks
the protection given by equity, is: What detriment
does it need to
show?
- 5 -
The equitable principle has been
fashioned to protect
the personal, private and proprietary
interests of the citizen,
not to protect the very different
interests of the executive
government. It acts, or is supposed to
act, not according to
standards of private interest, but in the
public interest.
This is not to say that equity will not protect
information
in the hands of the government, but it is to say that
when
equity protects government information it will look at
the
matter through different spectacles.
It may be a sufficient detriment
to the citizen that
disclosure of information relating to his
affairs will expose
his actions to public discussion and
criticism. But it can
scarcely be a relevant detriment to the
government that
publication of material concerning its actions
will merely
expose it to public discussion and criticism. It
is
unacceptable in our democratic society that there should be
a
restraint on the publication of information relating to
government
when the only vice of that information is that
it enables the
public to discuss, review and criticize
government action.
Accordingly, the court will determine the
government's claim to confidentiality by reference to the
public interest. Unless
disclosure is likely to injure the
public interest, it
will not be protected.
The court will not prevent the
publication of
information which merely throws light on the past
workings
of government, even if it be not public property, so long
as
it does not prejudice the community in other respects.
Then
disclosure will itself serve the public interest in
keeping the
community informed and in promoting discussion
of public affairs.
If, however, it appears that disclosure
will be inimical to the
public interest because national
security, relations with foreign
countries or the ordinary
business of government will be
prejudiced, disclosure will be
restrained. There will be cases in
which the conflicting
considerations will be finely balanced,
where it is difficult
to decide whether the public's interest in
knowing and in
expressing its opinion, outweighs the need to
protect
confidentiality."
I find myself is broad agreement
with this statement by
Mason J. In particular I agree that a
government is not in a
position to win the assistance of the court
in restraining the
publication of information imparted in
confidence by it or its
predecessors unless it can show that
publication would be harmful
to the public interest.
In relation to Mr. Wright, there
can be no doubt whatever
that had he sought to bring about the
first publication of his book
in this country, the Crown would
have been entitled to an
injunction restraining him. The work of a
member of M.I.5. and
the information which he acquires in the
course of that work must
necessarily be secret and confidential
and be kept secret and
confidential by him. There is no room for
discrimination between
secrets of greater or lesser importance,
nor any room for close
examination of the precise manner in which
revelation of any
- 6 -
particular
matter may prejudice the national interest. Any
attempt to do so
would lead to further damage. All this has been
accepted from
beginning to end by each of the judges in this
country who has had
occasion to consider the case and also by
counsel for the
respondents. It is common ground that neither the
defence of prior
publication nor the so called "iniquity" defence
would
have availed Mr. Wright had he sought to publish his book in
England.
The sporadic and low key prior publication of certain
specific
allegations of wrongdoing could not conceivably weigh in
favour of
allowing publication of this whole book of detailed
memoirs
describing the operations of the security service over a
lengthy
period and naming and describing many members of if not
previously
known to be such. The damage to the public interest
involved in a
publication of that character, in which the
allegations in
question occupy a fairly small space, vastly outweigh
all other
considerations. The question whether Mr. Wright or those
acting
for him would be at liberty to publish Spycatcher in
England
under existing circumstances does not arise for
immediate
consideration. These circumstances include the
worldwide
dissemination of the contents of the book which has been
brought
about by Mr. Wright's wrongdoing. In my opinion
general
publication in this country would not bring about any
significant
damage to the public interest beyond what has already
been done.
All such secrets as the book may contain have been
revealed to
any intelligence services whose interests are opposed
to those of
the United Kingdom. Any damage to the confidence
imposed in
the British Intelligence Services by those of friendly
countries
brought about by Mr. Wright's actions would not be
materially
increased by publication here. It is, however, urged on
behalf of
the Crown that such publication might prompt Mr. Wright
into
making further disclosures, would expose existing and past
members
of the British Intelligence Services to harassment by the
media and
might result in their disclosing other secret material
with a view,
perhaps, to refuting. Mr. Wright's account and would
damage the
morale of such members by the spectacle of Mr. Wright
having got
away with his treachery. While giving due weight to the
evidence
of Sir Robert Armstrong on these matters, I have not
been
persuaded that the effect of publication in England
would be to
bring about greater damage in the respects founded
upon than has
already been caused by the widespread publication
elsewhere in the
world. In the result, the case for an injunction
now against
publication by or on behalf of Mr. Wright would in my
opinion rest
upon the principle that he should not be permitted to
take
advantage of his own wrongdoing.
The newspapers which are the
respondents in this appeal
were not responsible for the worldwide
dissemination of the
contents of Spycatcher which has taken
place. It is a general rule
of law that a third party who comes
into possession of confidential
information which he knows to be
such, may come under a duty
not to pass it on to anyone else. Thus
in Duchess of Argyll v.
Duke of Argyll [1967] Ch. 302 the
newspaper to which the Duke
had communicated the information about
the Duchess was
restrained by injunction from publishing it.
However, in that case
there was no doubt but that the publication
would cause detriment
to the Duchess in the sense I have
considered above. In the
present case the third parties are "The
Guardian" and the
"Observer" on the one hand and
"The Sunday Times" on the other
hand. The first two of
these newspapers wish to report and
-7-
comment upon the substance of the
allegations made in
Spycatcher. They say that they have no
intention of serialising it.
By virtue of section 6 of the
Copyright Act 1956 they might,
without infringing copyright, quote
passages from the book for
purposes of "criticism or review."
"The Sunday Times" for their
part, wish to complete
their serialisation of Spycatcher. The
question is whether
the Crown is entitled to an injunction
restraining the three
newspapers from doing what they wish to do.
This is the third of
the issues identified by Sir John Donaldson
M.R. in the court
below. For the reasons which I have indicated
in dealing with the
position of Mr. Wright, I am of the opinion
that the reports and
comments proposed by 'The Guardian" and the
"Observer"
would not be harmful to the public interest, nor would
the
continued serialisation by 'The Sunday Times." I would
therefore
refuse an injunction against any of the newspapers. I
would stress
that I do not base this upon any balancing of public
interest nor
upon any considerations of freedom of the press, nor
upon any
possible defences of prior publication or just cause or
excuse,
but simply upon the view that ail possible damage to the
interest
of the Crown has already been done by the publication of
Spycatcher
abroad and the ready availability of copies in this
country.
It is possible, I think, to
envisage cases where, even in the
light of widespread publication
abroad of certain information, a
person whom that information
concerned might be entitled to
restrain publication by a third
party in this country. For example,
if in the Argyll case
the Duke had secured the revelation of the
marital secrets in an
American newspaper, the Duchess could
reasonably claim that
publication of the same material in England
would bring it to the
attention of people who would otherwise be
unlikely to learn of it
and who were more closely interested in her
activities than
American readers. The publication in England
would be more harmful
to her - than publication in America.
Similar considerations would
apply to, say, a publication in
America by the medical adviser to
an English pop group about
diseases for which he had treated them.
But it cannot reasonably
be held in the present case that
publication in England now of the
contents of Spycatcher
would do any more harm to the public
interest than has already
been done.
In relation to future
serialisations by "The Sunday Times,"
the Master of the
Rolls took the view that this newspaper stood in
the shoes of Mr.
Wright by virtue of the licence which it had been
granted by the
publishers. The cost of this licence was A$150,000
of which
A$25,000 was to be paid at once and the balance after
the
serialisation. So Mr. Wright and his publishers will benefit
from
future instalments of it. The Master of the Rolls considered
that
there was a strong public interest in preventing Mr. Wright
and
his publishers from profiting from their wrongdoing. There
can be
no doubt that the prospect of Mr. Wright receiving further
sums of
money from "The Sunday Times" as a reward for his
treachery
is a revolting one. But a natural desire to deprive Mr.
Wright of
profit does not appear to me to constitute a legally
valid ground
for enjoining the newspaper from a publication which
would not in
itself damage the interests of the Crown. Indeed, it
appears that
Mr. Wright would have no legally enforceable claim
against "The
Sunday Times" for payment, upon the principle of ex
turpi
causa non oritur actio. Whether "The Sunday Times" is
- 8 -
bound to account for the profits
of serialisation I shall consider
later.
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 know 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. There must
be at least a prima facie case that the
allegations have
substance. The mere fact that it was Mr. Wright,
a former member
of M.I.5. who, with the assistance of a
collaborator, had made the
allegations, was not in itself enough to
establish such a prima
facie case. In any event the publication
went far beyond the mere
reporting of allegations, in so far as it
set out substantial
parts of the text of Spycatcher. For example,
the alleged
plot to assassinate Colonel Nasser occupies but one
page of a
book, in paperback, of 387 pages, and the alleged plot
to
destabilise Mr. Wilson's government about 5 pages. In this
connection
it is to be noted that counsel for "The Sunday Times"
accepted
that neither of the two defences would have availed Mr.
Wright had
he sought to publish the text of Spycatcher in England.
- 9 -
There is no reason of logic or
principle why "The Sunday Times"
should have been in any
better position acting as it was under his
licence.
This leads on to consideration of
the question whether "The
Sunday Times" should be held
liable to account to the Crown for
profits made from past and
future serialisation of Spycatcher. An
account of profits
made through breach of confidence is a
recognised form of remedy
available to a claimant: Peter Pan
Manufacturing Corporation v.
Corsets Silhouette Ltd. [1969] 1
W.L.R. 96; cf. Reading v.
Attorney-General [1951] AC 507. In
cases where the
information disclosed is of a commercial character
an account of
profits may provide some compensation to the
claimant for loss
which he has suffered through the disclosure, but
damages are the
main remedy for such loss. The remedy is, in
my opinion, more
satisfactorily to be attributed to the principle
that no one
should be permitted to gain from his own wrongdoing.
Its
availability may also, in general, serve a useful purpose
in
lessening the temptation for recipients of confidential
information
to misuse it for financial gain. In the present case
"The Sunday
Times" did misuse confidential information
and it would be naive
to suppose that the prospect of financial
gain was not one of the
reasons why it did so. I can perceive no
good ground why the
remedy should not be made available to the
Crown in the
circumstances of this case, and I would therefore
hold the Crown
entitled to an account of profits in respect of the
publication on
12 July 1987. I would add that in my opinion 'The
Sunday Times,"
in the taking of the account, is not entitled
to deduct in
computing any gain the sums paid to Mr. Wright's
publishers as
consideration for the licence granted by the latter,
since neither
Mr. Wright nor his publishers were or would in the
future be in a
position to maintain an action in England for
recovery of such
payments. Nor would the Courts of this country
enforce a claim
by them to the copyright in a work the publication
of which they
had brought about contrary to the public interest:
cf. Glyn v.
Western Feature Film Co. 1916 1 Ch. 261 at p.
269. Mr Wright is
powerless to prevent anyone who chooses to do so
from publishing
"Spycatcher" in whole or in part in this
country, or to obtain any
other remedy against them. There remains
of course, the question
whether the Crown might successfully
maintain a claim that it is
in equity the owner of the copyright
in the book. Such a claim
has not yet been advanced, but might
well succeed if it were to
be.
In relation to future
serialisation of further parts of the
book, however, it must be
kept in mind that the proposed subject
matter of it has now become
generally available and that 'The
Sunday Times" is not
responsible for this having happened. In the
circumstances 'The
Sunday Times" will not be committing any
wrong against the
Crown by publishing that subject matter and
should not therefore
be liable to account for any resultant profits.
It is in no
different position from anyone else who now might
choose to
publish the book by serialisation or otherwise.
The next matter for consideration,
though the point is not
now of any practical importance is whether
the "Observer" and
'The Guardian" were in breach of
an obligation of confidence by
the publication of their articles
on 22 and 23 June 1986. The
circumstances were that Mr. Wright and
Heinemann and their
- 10 -
solicitors had given to the New
South Wales court, pending trial of
the action there, undertakings
not to disclose any information
gained by Mr. Wright in the course
of his service with M.I.5.
Scott J. found, and it has never been
disputed by counsel for the
two newspapers, that information about
the allegations described in
the two articles must have been
obtained from someone in the
office of the publishers or in that
of their solicitors. Scott J.
also inferred that the newspapers
must have known of the
undertakings that had been given. There can
be no question of
the articles having been a fair and accurate
report of proceedings
in the New South Wales court. Such a report
could only cover
matters which had actually been divulged in open
court. The
newspapers knew that the information in question was of
a
confidential nature, deriving as it did from Mr. Wright and
relating
to his experiences in M.I.5. Some of the allegations,
albeit of
minor significance, had never previously been published
at all. The
allegations about Sir Roger Hollis had received quite
widespred
publicity in various books and newspapers and had been
made by
Mr. Wright himself on a Granada television programme in
July
1984. Allegations about the Nasser plot and the Wilson plot
and
the bugging of embassies and other places had been made in
a
number of published books, but had been attributed to Mr.
Wright
only in an "Observer" article of 15 March 1985
and another of 9
February 1986, and then only in a somewhat
oblique fashion. I do
not consider that an injunction would have
been granted against
publication of the fact that Mr. Wright was
repeating in his
memoirs the allegation about Sir Roger Hollis,
because it was
quite well known that he had been making that
allegation for a
considerable time. The specific attribution to
Mr. Wright of the
other allegations is perhaps a different matter.
But I would
regard it as highly doubtful that the publication of
that attribution
could reasonably be regarded as damaging to the
public interest of
the United Kingdom in the direct sense that the
information might
be of value to - unfriendly foreign intelligence
services, or as
calculated to damage that interest indirectly in
any of the ways
spoken of in evidence by Sir Robert Armstrong. I
consider that on
balance the prospects are that the Crown would
not have been
held entitled to a permanent injunction. Scott J.
and the majority
of the Court of Appeal took that view, and I
would not be
disposed to differ from them.
The final issue is whether the
Crown is entitled to a
general injunction against all three
newspapers restraining them
from publishing any information
concerned with the Spycatcher
allegations obtained by any
member or former member of the
Security Service which they know or
have reasonable grounds for
believing to have come from any such
member or former member,
including Mr. Wright, and also from
attributing any such
information in any publication to any member
or former member
of the Security Service. The object of an
injunction on these lines
is to set up a second line of defence,
so to speak, for the
confidentiality of the operations of the
Security Service. The first
and most important line of defence is
obviously to take steps to
secure that members and ex-members of
the service do not speak
about their experiences to the press or
anyone else to whom they
are not authorised to speak. Obviously
the Director-General of
the Service is in a position to impose a
degree of discipline upon
the existing members of the service so
as to prevent unauthorised
disclosures, and it is reasonable to
suppose that in any event the
- 11 -
vast majority of these members are
conscientious and would never
consider making such disclosures. In
so far as unconscientious ex-
members are concerned, in particular
Mr. Wright, the position
under existing circumstances is more
difficult, although measures
may now be introduced which are apt
to discourage breaches of
confidence by such people. There are a
number of problems
involved in the general width of the injunction
sought. Injunctions
are normally aimed at the prevention of some
specific wrong, not
at the prevention of wrongdoing in general. It
would hardly be
appropriate to subject a person to an injunction
on the ground that
he is the sort of person who is likely to
commit some kind of
wrong, or that he has an interest in doing so.
Then the injunction
sought would not leave room for the
possibility that a defence
might be available in a particular
case. If Mr. Wright were to
publish a second book in America or
Australia or both and it were
to become readily available in this
country, as has happened in
regard to his first book, newspapers
which published its contents
would have as good a defence as the
respondents in the present
case. It would not be satisfactory to
have the availability of any
defence tested in contempt
proceedings. In my opinion an
injunction on the lines sought
should not be granted.
A few concluding reflections may
be appropriate. In the
first place I regard this case as having
established that members
and former members of the Security
Service do have a lifelong
obligation of confidence owed to the
Crown. Those who breach it,
such as Mr. Wright, are guilty of
treachery just as heinous as that
of some of the spies he
excoriates in his book. The case has also
served a useful purpose
in bringing to light the problems which
arise when the obligation
of confidence is breached by publication
abroad. The judgment of
the High Court of Australia reveals that
even the most sensitive
defence secrets of this country may not
expect protection in the
courts even of friendly foreign countries,
although a less extreme
view was taken by Sir Robert Cooke in
the New Zealand Court of
Appeal (Attorney-General v. Wellington
Newspapers Ltd. 28
April 1988). The secrets revealed by Mr.
Wright refer to matters of some
antiquity, but there is no reason
to expect that secrets concerned
with matters of great current
importance would receive any
different treatment. Consideration
should be given to the
possibility of some international agreement
aimed at reducing the
risks to collective security involved in the
present state of
affairs. The First Amendment clearly poses
problems in relation to
publication in the United States of
America, but even there there
is the prospect of defence and
intelligence secrets receiving some
protection in the civil courts,
as is shown by the decision of the
Supreme Court in Snepp v.
United States (1980) 444 U.S.
507. Some degree of comity and
reciprocity in this respect would
seem desirable in order to
promote the common interests of allied
nations.
My Lords, upon the whole matter
and for the reasons I have
expressed, I would dismiss both appeals
and also the cross-appeal
by "The Sunday Times."
- 12 -
LORD BRIGHTMAN
My Lords,
I am in agreement with the
majority of your Lordships that
the two appeals and the cross
appeal fail on all issues. The
ground is so comprehensively
covered by the speeches of your
Lordships that I intend that my
contribution to the debate shall be
brief.
It is clear beyond argument that
Mr. Peter Wright, by
making "Spycatcher" available for
serialisation and publication in
July 1987, flagrantly breached
the duty of confidence which, as a
former member of the British
Security Service, he owed to the
Crown. It is equally clear that
as a result of that publication and
the ensuing worldwide
dissemination of the facts and surmises
therein contained, the
initial confidential quality of the contents of
the book has been
totally destroyed. Against that background, the
question which
arises is, what are the duties and liabilities of the
three
newspapers in relation to their past and intended future
publication
and discussion of matter to be found in "Spycatcher."
A member of the Security Service
is under a lifelong duty
of confidence towards the Crown. The
purpose of that duty is to
preserve intact the secrets of the
service which it would be
against the public interest to disclose.
If the member departs
abroad and publishes his memoires there, he
breaches his lifelong
duty of confidence. Thereafter such duty is
incapable of existing
quoad the matter disclosed. The reason why
the duty of
confidence is extinguished is that the matter is no
longer secret
and there is therefore no secrecy in relation to
such matter
remaining to be preserved by the duty of confidence.
It is
meaningless to talk of a continuing duty of confidence in
relation
to matter disclosed world-wide. It is meaningful only to
discuss
the remedies available to deprive the delinquent confidant
or his
successors in title of benefits flowing from the breach, or
in an
appropriate case to compensate the confider.
In nay opinion the reason why the
court would, or
might, grant an injunction against Wright if he
now brought
himself within the jurisdiction and sought to publish
"Spycatcher"
here, is not that such an order would
recognise a subsisting duty
of confidence, but that it would
impede the unjust enrichment of
Wright, or preclude him from
benefiting, tangibly or intangibly,
from his own wrongdoing; or
perhaps that the copyright of the
work would in equity be vested
in the Crown, as suggested by
three of your Lordships.
The Crown is bound to face the
uncomfortable fact that a
disloyal intelligence officer is free to
emigrate to a safe haven
overseas, and from there to give
world-wide publicity, in pursuit of
money or activated by malice,
to the closest secrets of the
organisation which he once purported
to serve. After that has
been done, secrecy is lost and the Crown
is inevitably left with,
at best, the highly unsatisfactory and
totally inadequate remedies
of the nature sought in the present
case, or, at worst, with no
remedy at all. This situation is
inescapable. Fortunately,
exceedingly few intelligence officers
are cast in the same mould
as Wright.
- 13 -
I turn to the five issues
identified by Sir John Donaldson
M.R. [1987] 2 W.L.R. 805, 871:-
(1) Articles in the "Observer"
and "The Guardian" issues
of 22 and 23 June 1986
I agree with the majority of your
Lordships that, despite the
reprehensible leakage of information
which was the source
of these articles about the then forthcoming
Australian
proceedings, the articles were not in fact damaging to
the
public interest and are not therefore a proper foundation
for
any case by the Crown against these newspapers. There
are
concurrent findings of fact to this effect by the High
Court
and the Court of Appeal, which for my part I would
be
unwilling to disturb.
(2) and (4) First Instalment
(12 July 1987) of the intended
serialisation by "The Sunday
Times".
I am in complete agreement with
your Lordships, as with
the Courts below, that this serialisation,
which shortly
preceded the entry of the contents of "Spycatcher"
into the
public domain, constituted a breach of confidence on
the
part of 'The Sunday Times". The only remedy available
to
the Crown is the inadequate remedy of an account of
profits,
on the basis that "The Sunday Times" unjustly
enriched
itself and should therefore be stripped of the riches
wrongfully
acquired; cf. Reading v. Attorney-General
[1951] AC 507. I see no reason
why 'The Sunday Times"
should not account for a due
proportion of the entirety of
the total net profits of the issue
of 12 July 1987, with
possibly an allowance for those copies of
the paper which
omitted the offending instalment as part of a
deceit to
hoodwink the Government. • -
(3) Future serialisation by "The Sunday Times."
This aspect of the case raises the
most controversial of the
questions with which your Lordships are
concerned. One
starts with the knowledge that the first instalment
of
"Spycatcher" published by "The Sunday Times"
on 12 July
1987 was a breach of confidence by "The Sunday
Times" and
that a second instalment, if one is ever
published, will in a
broad sense stem from the same tainted source
as the first
instalment, namely, the purchase of serialisation
rights from
Heinemann Publishers Australia Pty. Ltd. in June 1987.
If,
as all your Lordships agree, the first instalment would
have
been restrained by the court on the application of the
Crown
had "The Sunday Times" not successfully hoodwinked
the
Government, my first impression was that any future
instalment
should be similarly restrained.
However, on second thoughts I do
not think this
conclusion is correct, attractive though it may be
on moral
grounds. The Crown is only entitled to restrain
the
publication of intelligence information if such
publication
would be against the public interest, as it normally
will be
if theretofore undisclosed. But if the matter sought to
be
published is no longer secret, there is unlikely to be any
- 14 -
damage to the public interest by
re-printing what all the
world has already had the opportunity to
read. There is no
possible damage to the public interest if Tom,
Dick or
Harry, or "The Sunday Times" reprints in whole
or part what
is already printed and available within the covers
of
"Spycatcher". Therefore it seems to me that no
injunction
should be granted to restrain further serialisation. I
think it
would be particularly inappropriate to prohibit "The
Sunday
Times" from serialising a book which every other
newspaper
proprietor in the land is at liberty to serialise or
publish,
and may furthermore so do without reference to Wright
or
Heinemann; for it is certain that neither of the latter has
any
copyright in "Spycatcher" which would be recognised by
the
courts of this country. I do not see how the public
interest would
be realistically served by a selective ban on
the
re-printing of non-confidential matter in these
circumstances.
(5) General Injunction against 'The Sunday Times"
I confess that at one time I felt
disposed in favour of
granting an injunction to restrain 'The
Sunday Times", as a
proven wrongdoer, from seeking or
publishing confidential
information concerning the work of the
British Security
Service, or inviting "The Sunday Times"
to give an
undertaking to the like effect. However, this course
does
not appeal to your Lordships, and the point it not one
which
I wish to waste your Lordships' time pursuing.
As indicated, I would dismiss the
appeals and the cross
appeal.
LORD GRIFFITHS
My Lords,
In this appeal we are concerned to
discover the
circumstances in which the Government can invoke the
civil
law to prevent the publication of the contents of
the
memoirs of a member of the Security Services.
In the course of the argument we
have been taken over the
whole of the law of confidence as it has
developed over the
last century. It is judge-made law and reflects
the
willingness of the judges to give a remedy to protect
people
from being taken advantage of by those they have
trusted
with confidential information. With two exceptions
the
cases have been concerned with the protection of
individual
rights and provide no sure guide to the approach that
should
be adopted when it is the Government that seeks
the
protection of the law. It is nevertheless helpful to see
in
which way the authorities point.
Although the terms of a contract
may impose a duty of
confidence the remedy is not dependent on
contract and
- 15 -
exists as an equitable remedy.
Megarry J. identified the
three essentials to found the duty in
Coco v. A. N. Clark
(Engineers) Ltd. [1969] R.P.C. 41, 47:
'Three elements are normally
required if, apart from
contract, a case of breach of confidence
is to succeed.
First, the information itself, in the words of Lord
Greene,
M.R. in the Saltman case [(1948) 65 R.P.C. 203] on
page
215 must 'have the necessary quality of confidence about
it.'
Secondly, that information must have been imparted in
circumstances
importing an obligation of confidence.
Thirdly, there must be an
unauthorised use of that
information to the detriment of the party
communicating
it."
The first of these elements will
not normally be present if
the information is in the public domain
- "it must not be
something that is public property and
public knowledge" per Lord
Greene M.R. in Saltman
Engineering Co. v. Campbell Engineering
Co. Ltd. (1948) 65
R.P.C. 203, 215. Furthermore, information may
lose its original
confidential character if it subsequently enters the
public
domain. If the confider publishes the information this
releases
the confidant from his duty of confidence. See O. Mustad
and
Son v. Dosen [1964] 1 W.L.R. 109. The courts have, however,
so
far refused to extend this principle where the
confidential
information is published by a third party: see
Cranleigh Precision
Engineering Ltd, v. Bryant [1965] 1
W.L.R. 1293, or to the case of
publication of the information by
the confidant: see Speed Seal
Products Ltd, v. Paddington
[1985] 1 W.L.R. 1327.
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: see Prince Albert
v. Strange (1849) 1 Mac. &
G. 25. and Duchess of Argyll v. Duke
of Argyll [1967] Ch. 302. If
this was not the law the right would
be of little practical value:
there would be no point in imposing a
duty of confidence in
respect of the secrets of the marital bed if
newspapers were free
to publish those secrets when betrayed to
them by the unfaithful
partner in the marriage. When trade
secrets are betrayed by a
confidant to a third party it is usually
the third party
who is to exploit the information and it is the
activity of the
third party that must be stopped in order to
protect the owner of
the trade secret.
The courts have, however, always
refused to uphold the
right to confidence when to do so would be
to cover up
wrongdoing. In Gartside v. Outram (1857) 26
L.J. Ch. 113, it was
said that there could be no confidence in
iniquity. This approach
has been developed in the modern
authorities to include cases in
which it is in the public interest
that the confidential information
should be disclosed. See Initial
Services Ltd, v. Puttrill [1968] 1
Q.B. 396, Beloff v.
Pressdram Ltd.. [1973] 1 A.E.R. 241 and Lion
Laboratories
Ltd, v. Evans [1985] Q.B. 526. This involves the
judge in
balancing the public interest in upholding the right to
confidence,
which is based on the moral principles of loyalty and
fair
dealing, against some other public interest that will be served
by
the publication of the confidential material Even if the
balance
comes down in favour of publication, it does not follow
that
publication should be to the world through the media. In
- 16 -
certain circumstances the public
interest may be better served by
a limited form of publication
perhaps to the police or some other
authority who can follow up a
suspicion that wrongdoing may lurk
beneath the cloak of
confidence. Those authorities will be under a
duty not to abuse
the confidential information and to use it only
for the purpose of
their inquiry. If it turns out that the
suspicions are without
foundation, the confidence can then still be
protected, see Franco
me v. Mirror Group Newspapers Ltd. [1984] 1
W.L.R. 892. On the
other hand, the circumstances may be such
that the balance will
come down in favour of allowing publication
by the media, see Lion
Laboratories Ltd, v. Evans [1985] Q.B. 526.
Judges are used to
carrying out this type of balancing exercise and
I doubt if it is
wise to try to formulate rules to guide the use of
this discretion
that will have to be exercised in widely differing
and as yet
unforeseen circumstances. I have no doubt, however,
that in the
case of a private claim to confidence, if the three
elements of
quality of confidence, obligation of confidence and
detriment or
potential detriment are established, the burden will
lie upon the
defendant to establish that some other overriding
public interest
should displace the plaintiff's right to have his
confidential
information protected.
With these features of the private
law of confidence in
mind, I now turn to examine the
Attorney-General's submissions.
The starting point of his argument
is that a member of the
Security Services owes a lifelong duty to
the Crown not to
disclose any secret or confidential information
he acquired during
his service. This obligation has been accepted
by every judge who
has considered this case and is clearly right.
The Security and
Intelligence Services are necessary for our
national security. They
are, and must remain, secret services if
they are to operate
efficiently. The only practical way to achieve
this objective is a
brightline rule that forbids any member or
ex-member of the
Service to publish any -material relating to his
service experience
unless he has had the material cleared by his
employers. There is,
in my view, no room for an exception to this
rule dealing with
trivia that should not be regarded as
confidential. What may
appear to the writer to be trivial may in
fact be the one missing
piece in the jigsaw sought by some hostile
intelligence agency.
The only possible exception that I would
countenance would be the
public interest defence. Frankly, I find
it very difficult to
envisage the circumstances in which the facts
would justify such a
defence. But, theoretically, if a member of
the service discovered
that some iniquitous course of action was
being pursued that was
clearly detrimental to our national
interest, and he was unable to
persuade any senior members of his
service or any member of the
establishment, or the police, to do
anything about it, then he
should be relieved of his duty of
confidence so that he could alert
his fellow citizens to the
impending danger. However, no such
considerations arise in the
case of Spycatcher. It is true that
grave accusations are
made against both M.I.5 and M.I.6, but they
occupy only a few
pages of the book and cannot possibly justify
publishing in great
detail the operational organisation, the methods
and the personnel
of M.I.5, with which this book is mostly
concerned. If Peter
Wright had intended to publish the book in
this country before it
was published abroad, the Attorney-General
would have been
entitled to an injunction to restrain him and
would also have been
entitled to an injunction to restrain any
newspaper or other
person who wished to publish it.
- 17 -
The next step in this argument is
to assert that if Peter
Wright wished to publish Spycatcher
in this country today, the
Government would still be entitled to
an injunction to stop him
doing so. I agree that the Government
would be entitled to such
an injunction but at this stage the
argument becomes more difficult
and the reason for granting the
injunction must be carefully
examined. The Attorney-General
accepts that so far as betraying
secret confidential information
to our enemies is concerned, the
damage has been done, and no
further damage of that kind will
result from publishing Spycatcher
in this country. Nevertheless,
the Attorney-General, as I
understand the case, advances three
separate arguments each of
which, it is submitted, would justify
the grant of an injunction
against Peter Wright.
Firstly, it is submitted that
detriment to the confider is not
an essential element that has to
be proved in support of the
action for breach of confidence. Mr.
Alexander gave as an
example a marital confidence which showed
some friend of the
husband in a very bad light and suggested that
a court would, at
the suit of the husband, restrain a wife from
publishing such
information even though it did not harm the
husband. I daresay
the court would protect such a confidence but I
do not accept
that the husband would suffer no detriment if the
confidence was
breached. The husband would be likely to lose a
friend and
friends can be precious. I am of opinion that
detriment, or
potential detriment to the confider, is an element
that must be
established before a private individual is entitled
to the remedy.
The remedy has been fashioned to protect the
confider not to
punish the confidant, and there seems little point
in extending it
to a confider who has no need of the protection.
But whatever
may be the position between private litigants, we
have in this
litigation to consider the position when it is the
Government that
seeks the remedy. In my view, for reasons so
cogently stated by
Mason J. in Commonwealth of Australia v.
John Fairfax & Sons
Ltd [1980] 147 C.L.R. 39, which I will
not repeat because they are
fully cited in the speech of Lord
Keith of Kinkel, a government
that wishes to enforce silence
through an action for breach of
confidence must establish that it
is in the public interest to do so.
This is but another way of
saying that the government must
establish, as an essential element
of the right to the remedy, that
the public interest will suffer
detriment if an injunction is not
granted. This approach also has
the support of Lord Widgery in
the Grossman diaries case, which is
the only reported decision of
the Government seeking this remedy
in our courts, see Attorney-
General v. Jonathan Cape Ltd.
[1976] Q.B. 752. I therefore do not
accept the first line of
argument.
The second line of argument is
that if it is necessary to
show detriment, this is demonstrated by
the evidence of Sir Robert
Armstrong which gives details of a
number of respects in which it
is alleged that the efficient
future operation of the Security
Services would be adversely
affected if publication of Spycatcher
were permitted in
this country. I shall have to deal with these
matters in more
detail when I consider the position of the
newspapers, but so far
as Mr. Wright is concerned, I would accept
that they have
sufficient weight to justify the grant of an
injunction to
restrain him from publishing Spycatcher in this
country for
I can see no countervailing public interest that he
could
legitimately put in the scales against such detriment.
- 18 -
The third argument is that even if
publication of Spycatcher
in this country would cause no
further harm to the Security
Service, Mr. Wright nevertheless
remains bound by his duty of
confidence because he cannot free
himself from this duty by
breaking it, or to put the matter in
more colourful language, he
cannot be permitted to profit from his
own wrongdoing. All the
judges who have so far considered this
case have accepted this
argument. The Law Commission after an
exhaustive study of the
law of confidence came to the opposite
conclusion; they
recommended that once confidential information
has come into the
public domain (and there can be no doubt that
Spycatcher is in the
public domain) the obligation of
confidence should come to an end
even if the confidant is
responsible for the publication, see Law
Commission Report on
Breach of Confidence (1981) (Cmnd. 8288.
The Law Commission were,
however, considering the problem in
terms of breaches of
commercial confidences and the "springboard
doctrine"
which prevents a confidant responsible for commercial
information
becoming public knowledge reaping any financial
benefit from his
breach. There may be sound reasons for not
granting an injunction
after a breach of a commercial confidence
when it may be possible
to provide recompense by way of
damages, and some of the
difficulties that arise in such
circumstances are discussed in the
judgment of Megarry J. in Coco
v. A. N. Clark (Engineers) Ltd.
[1969] R.P.C. 41, but they do not
fall for consideration now. So
far as members of the Security
Services are concerned, damages
would be a wholly inappropriate
remedy for their breach of faith
and although it would provide
some disincentive to make them
account for any profits they
might make, we have the example of
Mr. Cavendish who published
a private memoir, at his own expense,
to show that liability to
account for profits is not the answer.
It would make a mockery
of the duty of confidence owed by members
of the Security and
Intelligence Services if they could discharge
it by breaching it. I
would therefore hold' that whatever
publication may have been
achieved abroad, Peter Wright remains
bound by his duty of
secrecy and confidence and will not be
allowed to publish
Spycatcher in any form in this country.
Having established that Peter
Wright remains bound by his
duty of confidence, the
Attorney-General then submits that any
third party who receives
the confidential information, knowing of
his breach of confidence,
is likewise bound by the same duty not
to disclose the contents of
Spycatcher. The Attorney-General
therefore submits that
despite the fact that Spycatcher has
received worldwide
publication and is in fact available in this
country for anyone
who wants to read it, the law forbids the
press, the media and
indeed anyone, else from publishing or
commenting upon any part of
it, saving only that which has
already been referred to in the
judgments of the courts. If such
was the law then the law would
indeed be an ass, for it would
seek to deny to our own citizens
the right to be informed of
matters which are freely available
throughout the rest of the
world and would in fact be seeking in
vain because anyone who
really wishes to read Spycatcher
can lay his hands on a copy in
this country.
The position of a third party who
receives information that
has been published in breach of
confidence will vary widely
according to the circumstances of the
case. In a case of
- 19 -
commercial secrets with which the
development of the law of
confidence has been mostly concerned, a
third party who knowingly
receives the confidential information
directly from the confidant,
which is the usual case, is tainted
and identified with the
confidant's breach of duty and will be
restrained from making use
of the information. If, however, before
the confider can act, his
confidential information has spread far
and wide and is read in,
say, some trade magazine by a rival
manufacturer, that
manufacturer is in no way tainted or associated
with the original
breach of confidence and he will not be
restrained from making
use of information that is now public
knowledge even though he
may realise that the information must
have been leaked in breach
of confidence. The courts have to
evolve practical rules and once
the confidential information has
escaped into the public domain it
is not practical to attempt to
restrain everyone with access to the
knowledge from making use of
it. That is not, however, to say
that the original confidant may
not be restrained or even a third
party in the direct chain from
the confidant. Each case will
depend upon its own facts and the
decision of the judge as to
whether or not it is practical to give
injunctive protection and
whether the third party should, as a
matter of fair dealing, be
restrained or, to use the language of
the equity lawyer, whether
the conscience of the third party is
affected by the confidant's
breach of duty. There is certainly no
absolute rule even in the
case of a breach of a private confidence
that a third party who
receives the confidential information will
be restrained from using
it.
The "Observer" and "The
Guardian" wish to publish so much
of Spycatcher as
they are permitted to do under the fair dealing
exception in
copyright law and to comment on the contents of the
book. These
newspapers have played no part in the publication of
Spycatcher
and will draw solely upon the contents of a book now
firmly in the
public domain. They- assert that the information in
Spycatcher
has lost the quality of confidentiality and, this having
occurred
without their assistance, they are in no way tainted by
Peter
Wright's breach of confidence and must be free to publish.
In the
context of a claim to protect a private confidence, this
would be
a conclusive answer to the claim. But we are not here
dealing with
a claim to protect a private confidence. We are
dealing with an
undoubted breach of confidence by a member of
the Security
Services and a claim that to continue that breach by
further
publication of Spycatcher in this country would damage
the
future operation of our Security and Intelligence Services and
thus
imperil national security. The court cannot brush aside such
a
claim supported as it is by the evidence of the Secretary to
the
Cabinet. This is the detriment to the public interest that
the
Attorney-General identifies as justifying a continuing ban
on
Spycatcher. It must be examined and weighed against the
other
countervailing public interest of freedom of speech and the
right
of the people in a democracy to be informed by a free press.
Article 10 of the Convention for
the Protection of Human
Rights and Fundamental Freedoms identifies
"the interests of
national security" and "preventing
the disclosure of information
received in confidence" as
separate grounds upon which the right
to freedom of expression
may, in some circumstances, have to be
restricted. I see no reason
why our law should take a different
approach and so, quite apart
from the law of confidence, I turn
- 20 -
now to the question of whether
the ban can be justified in the
"interests of national
security."
The reasons given in the evidence
of Sir Robert Armstrong
for fearing that the future efficiency of
the Security and
Intelligence Services would be damaged by
publication of
Spycatcher in this country were summarized
and dealt with in the
following passage of the judgment of Scott
J. [1988] 2 W.L.R. 805,
860-862:
"The national security
factors were expounded by Sir Robert
Armstrong in his evidence.
They were these. (1) The
unauthorised disclosure of information is
likely to damage
the trust which members of the service have in
each other.
This damage must already have occurred.
"(2) Other members of the
Security Services may break faith
and follow suit. But unless they
depart from the
jurisdiction of these courts they will be unable
to follow Mr.
Wright's example. And if they do leave the country,
Mr.
Wright's example is already in place as a lamentable beacon.
"(3) Unless permanent
injunctions are granted pressure will
be exerted by the media on
other members or ex-members
of the Security Services to tell their
side of the Spycatcher
allegations. This is speculation
but, on the evidence I
heard, is likely to happen. Whether the
pressure will be
resisted is impossible to tell. Whether, if
anyone were to
succumb to the pressure, publication would follow,
would
depend on several other imponderables. The point
does,
however, deserve weight in the scales.
"(4) Intelligence and
Security Services of friendly foreign
countries may; if permanent
injunctions are not granted, lose
confidence in the British
Security Services. This loss of
confidence may already have taken
place as a result of the
publication of Spycatcher. But the
notion that the grant or
withholding of permanent injunctions will
make any
difference seems to me somewhat unreal.
"(5) The confidence of
informers, who rely on their identity
and activities being kept
confidential, will be damaged.
Here, too, the loss of confidence
may already have
happened. If it has, it is a regrettable fait
accompli. Sir
Robert did, I should record, give evidence that
individuals
who had assisted M.I.5 in the past, had, since
the
publication of Spycatcher, expressed anxiety about the
risk
of exposure. Ail this evidence was given by Sir
Robert
third-hand but I found it inherently believable. Sir
Robert's
evidence did not, however, suggest that if
permanent
injunctions were granted, the individuals would feel
any
safer.
"(6) Detriment will flow from
the publication of information
about methodology, and personnel
and organisation of M.I.5.
This is a point of real substance and
justifies the conclusion
that M.I.5 officers cannot be
allowed to publish their service
memoirs. But it does not bear
upon the position today.
The detriment is a fait accompli and I do
not follow how
- 21 -
the granting or withholding of
permanent injunctions can
make any difference.
"(7) Publication of
Spycatcher has damaged the morale of
members of M.I.5. A
permanent injunction, depriving Mr.
Wright of the profits to be
made on the home market,
would go some way to restoring morale.
"I find this point made by
Sir Robert difficult to weigh. I
did not understand Sir Robert to
be repeating views that
had been actually expressed by members of
M.I.5. Rather
he was expressing his own belief as to the likely
effect on
morale of permanent injunctions. There may well, I
think,
be resentment felt by loyal M.I.5 members at the
spectacle
of Mr. Wright reaping very substantial financial
rewards
from his disloyalty. And the removal of any impediment
on
dissemination in this country of the book or its contents
might
well add fuel to that balance as between the
Attorney-General and
the newspapers. The purpose of the
duty of confidence owed by
officers of M.I.5 is to protect
information about the affairs of
M.I.5. If unauthorised
disclosures are made to newspapers, the
'obligation of
conscience' owed by the newspapers is owed for the
same
reason, namely, to protect the confidentiality of
information
that, for national security reasons, must be
kept
confidential. The duty of confidence is not, in my
opinion,
imposed on newspapers in order to maintain the morale
of
members of M.I.5. If in relation to particular information,
the
maintenance of secrecy or confidence is not needed or
has become
impossible, a duty of confidence cannot, in my
opinion, be imposed
on newspapers on the ground that
disclosure would adversely affect
the morale of M.I.5.
"The factors I have referred-
to were those advanced by Sir
Robert justifying permanent
injunctions. The maintenance of
the secrecy or confidentiality of
the information contained
in the book was, for obvious reasons,
not among them. Sir
Robert accepted that damage must already have
been caused
by the publication of the book. But he described
that
damage as 'limited' and as likely to be greatly increased
if
permanent injunctions were not granted. In particular,
Sir
Robert stressed that Spycatcher was the first
unauthorised
book of memoirs written by an insider. I have found
it
difficult to follow Sir Robert's point that greatly
increased
damage would follow publication of Spycatcher in
this
country and unrestricted press comment on its contents and
I
do not think that proposition stands much examination.
The damage
to national security interests must, in my view,
have already been
inflicted. The spectacle of Mr. Wright
making money out of the
unrestricted sale of his book in
this country would, I accept, be
offensive and an affront to
most decent people. But I am not
satisfied that it will
cause any additional damage to national
security interests."
I am broadly in agreement with the
assessment of the judge.
The one point at which I adopt a slightly
different approach is in
his appraisement of the suggestion that
the morale of the Security
Services would be damaged by permitting
publication in this
country. The judge obviously thinks little of
the suggestion but
- 22 -
ultimately he rejects it on the
grounds that "the duty of
confidence is not, in my opinion,
imposed on newspapers in order to
maintain the morale of members
of M.I.5." The worldwide
publication of Spycatcher
disposes of the Attorney-General's claim
based upon the protection
of confidential information but the claim
based upon national
security remains to be examined. If I had
thought that further
publication would so damage the morale of
the Security Service
that they could not operate efficiently I
would have been prepared
to grant the injunction in the interests
of national security. Of
course, I think no such thing.
Whatever may have been the
position in the past when the
likes of Philby, Burgess, Maclean
and Blunt were recruited things
are very different today. The most
rigorous positive vetting
procedures are applied before any man or
woman is accepted as a
member of the Security and Intelligence
Services and their security
status is reviewed regularly
throughout their service. These
procedures are designed to ensure,
so far as is humanly possible,
that only those of the highest
integrity and emotional stability
serve in our Security and
Intelligence Services. I have no doubt
that all loyal members of
the Security Services past and present
were outraged by Peter
Wright's betrayal of trust which was all
the more offensive
because of the money that he and others made
out of it. But I
reject as quite unrealistic the suggestion that the
morale of this
close knit and dedicated group of men and women
will collapse or
indeed be in any way affected by a further
publication that they
know can do no further damage to the
operation of their service.
In so far as the possibility of Peter
Wright making any more money
out of publication in this country
is concerned I can offer them a
little comfort. Neither Peter
Wright nor any agent of his will be
permitted to publish
Spycatcher in this country. If Peter
Wright owns the copyright in
Spycatcher, which I doubt, it
seems to me extremely unlikely that
any court in this -country
would uphold his claim to copyright if
any newspaper or other
third party chose to publish Spycatcher and
keep such
profits as they might make to themselves. would
expect a judge to
say that the disgraceful circumstances in which
he wrote and
published Spycatcher disentitled him to seek the
assistance
of the court to obtain any redress: see Glyn v. Weston
Feature
Film Co. [1916] 1 Ch. 261. I say I doubt if Peter Wright
owns
the copyright because as at present advised I accept the
view of
Scott J. and Dillon L.J. that the copyright in Spycatcher
is
probably vested in the Crown.
In my judgment the balance in this
case comes down firmly
in favour of the public interest in freedom
of speech and a free
press. The interlocutory injunction must be
lifted leaving the
"Observer" and "The Guardian"
free to publish and comment upon
Spycatcher.
The position of 'The Sunday Times"
is different and presents
a more difficult problem. 'The Sunday
Times" is more closely
identified with Peter Wright's
attempts to publish Spycatcher
abroad than any other
newspaper. On 4 June 1987 'The Sunday
Times" bought the
serialization rights in Spycatcher from Peter
Wright's
Australian publishers, Heinemann. Although judgment had
by that
date been given in Australia in favour of publication an
appeal
was pending and Spycatcher could not yet be published
in
Australia. 'The Sunday Times," however, knew that Viking
Penguin
- 23 -
Inc. intended to publish the book
in the United States and it was
their intention to publish the
first instalment of Spycatcher more
or less
contemporaneously with the American publication.
Presumably "The
Sunday Times" thought that the American
publication would put
the book so firmly in the public domain that
all confidentiality
would be destroyed. In fact, however, 'The
Sunday Times" did
not wait for the American publication and
published the first
serialization on 12 July 1987 a few days before
the book
was published in the United States. I agree with Lord
Keith of
Kinkel that for the reasons he gives "The Sunday Times"
was
in breach of its duty of confidence to the Crown in publishing
the
extracts from Spycatcher on 12 July 1987 and that it was
not
protected by either the defence of prior publication or
disclosure
of iniquity. I also agree that it is liable to account
to the Crown
for any profits it may have made from that
publication.
But should "The Sunday Times"
be permitted to continue
the serialisation of Spycatcher.
For reasons that I have already
given further serialization will
cause no significant damage to
national security and the
confidential information in Spycatcher is
now public
knowledge. If there is to be a further restraint on
'The Sunday
Times" it can only be by extending to 'The Sunday
Times"
the principle that a member of the Security Service cannot
discharge
himself from his duty of confidence by breaking it. The
question
is whether "The Sunday Times" has so closely
associated
itself with Wright's attempts to publish abroad that it
now stands
in the shoes of Wright for the purpose of publication
in this
country and should be similarly restrained. As Sir John
Donaldson
M.R. put it [1988] 2 W.L.R. 805, 887 "in
serializing Spycatcher
The Sunday Times' becomes 'Mr.
Wright in newsprint."' It seems
to me that "The Sunday
Times" by entering into negotiations to
serialise Spycatcher
in this country actively encouraged Wright and
his publishers to
get the book published abroad. The negotiations
started in April
1987 when the book was still under embargo in
Australia. They
ended in a letter of 4 June written by Mr.
Andrew Neil the editor
of "The Sunday Times" from which I quote
the opening
paragraphs:
"We are now agreed on the
following re Spycatcher. We
will pay £150,000 for
U.K. serial rights that includes a
payment of £25,000 toward
Heinemann Publishers Australia's
legal expenses.
(i) We pay £25,000 now to secure U.K. serial rights.
(ii) We pay the balance of
£125,000 if we serialise within
one month of first
publication of Spycatcher anywhere
in the world."
It was publication abroad that did
the real damage to our Security
Services. "The Sunday Times"
encouraged that publication and in
my view its conscience is
affected by its action in so doing. The
High Court of Australia
have by their judgment in this litigation
made it plain that we
cannot look to the law in Australia for any
assistance when a
member of our Security Services wishes to
betray the secrets of
his service. The Court of Appeal in New
Zealand has not followed
this decision of the High Court of
Australia. Sir Robin Cooke in
his judgment has made it plain that
in an appropriate case New
Zealand law would protect the secrets
- 24 -
of our security services. It will
come as little surprise that I
emphatically prefer the reasoning
of Sir Robin Cooke. Whether
other friendly states would follow the
Australian decision I do not
know, but there must at least be a
risk that they would take the
same view. It therefore seems to me
that our own law should do
what it can to discourage such
publication. One obvious way to
discourage publication is to
render it unprofitable to those who
actively encourage the
publication. If 'The Sunday Times" is
restrained from further
serialisation of Spycatcher it will be placed
at a unique
disadvantage compared with the rest of the press but
that is the
price it will pay for being prepared to encourage
Wright in his
attempts to publish abroad. The public will not
suffer. If they
have any interest left in Spycatcher. they will be
able to
turn to a host of other papers for information. An
alternative
might be to allow "The Sunday Times" to complete
the
serialisation but make it liable to account to the Crown for
any
profits that it makes. I reject this alternative because it
would
be unseemly for the law to permit a course of action which
it
deemed to be wrong on condition that the wrongdoer paid a
price
for his wrongdoing. It is one thing to say you have done
wrong
therefore you must be deprived of any profit you have made -
it
is quite another to say we will let you go on doing wrong
provided
you hand over any profit you make out of the wrongdoing.
For "The Sunday Times"
it is said that to prevent the
completion of the serialisation
would be a futile exercise when
Spycatcher is freely
available and will be commented upon by the
media as a whole. It
is not the function of the law of confidence
to punish the
confidant but to protect the confider, and in the the
present
circumstances, no effective protection will be given to the
Crown
by stopping the remainder of the serialisation.
Although I have not found this to
be an easy decision I have
come to the conclusion, that 'The
Sunday Times" should not be
permitted to continue this
serialisation. Peter Wright will not be
permitted to publish
Spycatcher in this country nor will any
publisher on his
behalf. If Peter Wright approached a newspaper
today to sell
serial rights to publish Spycatcher he would be
restrained
and so would the newspaper. It cannot in principle
make any
difference that the rights were sold by Peter Wright's
publisher
rather than by Peter Wright. If Heinemann today is to
be
restrained so must anyone in the direct contractual chain
with
Heinemann. "The Sunday Times" deliberately placed
itself in that
contractual chain and in doing so gave
encouragement to the
publication of Spycatcher abroad and
thereby associated itself with
Peter Wright's breach of duty. If
'The Sunday Times," who is
tainted with Peter Wright's breach
of confidence, is to be free to
serialise, upon what possible
ground can the court restrain Peter
Wright from selling Spycatcher
to any other newspaper - yet all
the judges who have previously
considered this case are agreed
that Peter Wright should not be
entitled to do so. This is, in my
opinion a case in which the 'The
Sunday Times" is so closely
associated with Peter Wright's
breach of duty that equity should
place the same restraint upon
'The Sunday Times" as it does upon
Peter Wright. In coming to
this decision I have, of course,
balanced the loss to freedom of
expression but that seems to me
to be of relatively little weight
when the media as a whole will
be free to publish and comment and
thus inform the public of the
contents of the book.
- 25 -
We are next asked to consider the
stale question of whether
the "Observer" and "The
Guardian" were justified in publishing the
accounts of the
Australian proceedings on the 22 and 23 June
1986. I use the word
"justified" because at that date Spycatcher
had
not yet been published anywhere in the world and the two
newspapers
had received information of the contents of the book
either from
Wright's publishers or lawyers which they knew
constituted both a
breach of the duty of secrecy and confidence
owed by Wright to the
Crown and a breach of the undertaking
given to the court in New
South Wales not to reveal the contents
of the book pending trial
of the action. In these circumstances
the newspapers were bound by
the same duty of confidence as
Wright unless publication could be
justified either on the grounds
that previous publication had
destroyed the confidentiality of the
material they published, or
that it was in the public interest that
they should publish and
this overrode their duty of confidence and
any other
considerations of national security.
My starting point is to consider
what would have been the
position if Heinemann had been attempting
to publish the book in
this country. The court would be faced with
the first attempt by
a member of the Security Services to publish
his memoirs and an
interlocutory injunction would undoubtedly have
been granted to
restrain publication on the grounds that it would
be damaging to
the public interest. Indeed we have the example of
the
interlocutory injunctions granted by Millet J. The judge
expressly
provided in his order
"this order shall not
prohibit direct quotation of attributes
to Peter Morris Wright
already made by Mr. Chapman
Pincher in published works, or in a
television programme or
programmes broadcast by 'Granada
Television'."
The judge excepted publication of
these matters on the ground
that they had already been published
without any attempt by the
Government to stop them and therefore
would be neither a breach
of confidence by the newspapers nor do
any further damage to
national security. However, Millet J. made
it quite clear that this
proviso did not entitle either newspaper
to re-publish the two
articles. The articles went far beyond mere
repetition of what
had previously appeared in the press or on
television as direct
attribution to Peter Wright. I have no doubt
that the judge made
the right decision.
If that decision was right, I can
see no reason why the
newspapers were justified in publishing the
articles because the
attempt was being made to publish Spycatcher
abroad rather than
in this country. Of course the public had a
legitimate interest in
knowing that the Government were attempting
to stop the
publication of the memoirs of a member of M.I.5 in
Australia but
that could be reported without setting out the
contents of the
memoirs. The public would have had an even greater
interest if
the attempt had been made to publish in this country
but it would
not have been permissible to report the contents of
the book
before the action had been tried. I therefore cannot
agree that
the articles could be justified as a report of the
Australian
proceedings. I would add that although our courts were
not bound
by the Australian court's decision that the contents of
Spycatcher
should not be disclosed pending trial of the
action it was a factor
- 26 -
that a judge would be entitled
to take into account when weighing
the balance between upholding
confidentiality and allowing
publication. Comity requires that we
should give weight to the
desirability of upholding the decisions
of the courts in other
countries.
Finally on this aspect to the
case, I of course agree that if
Sir Roger Hollis was a spy or if
M.I.6 plotted to kill President
Nasser or if a cabal in M.I.5 had
plotted the overthrow of the
Wilson Government it reveals a very
serious state of affairs
requiring immediate and effective action
to identify and deal with
all those concerned with such
activities. I do not, however, agree
that if a member of the
service made such an allegation to a
journalist that it would
necessarily be in the public interest that it
should immediately
be published in a newspaper. I have tried to
see if I could evolve
some suggested course of action that an
editor should follow
before taking a decision to publish in his
newspaper. I have to
confess that, save in the most general
terms, I have been unable
to formulate any such guidance because
circumstances will vary so
infinitely from case to case. Ideally,
of course, an editor would
inform the Treasury Solicitor that he
was in the possession of
such information and intended to publish
it. This would enable the
Government to apply for an injunction
so that a judge could decide
whether the balance came down in
favour of preserving secrecy or
publication. If this is too much to
hope for, and I suspect it is,
then at least I would hope that an
editor would first consider
very closely the motive of his
informant in making what was on the
face of it a disloyal
disclosure. If the motive was apparently
financial the disclosure
would obviously be suspect. Even if
satisfied that the motive was
not financial the possibility that
the information was untrue and a
deliberate attempt to discredit
the service would still remain to be
considered. And even if the
editor concluded that there were
serious reasons for believing
that the information might be true he
should pause long before
publishing it rather than taking it to the
responsible minister so
that it could be investigated and dealt
without causing
unnecessary public disquiet and possibly unjustified
loss of
confidence in the Security Services. As has been said time
and
again in this litigation, there are no absolutes and I recognise
that
in very exceptional circumstances publication may be justified.
But
not, I assert again, on the mere fact that the allegation has
been
made by a member of the Security Services for that, it
seems to
me, would be to adopt the philosophy of Dr. Goebbles
that the
bigger the lie the more likely it is to be believed. If
the
allegations about Sir Roger Hollis, the Nasser plot and the
Wilson
plot had been revealed for the first time to a journalist
by Peter
Wright I have no doubt that it would have been the duty
of an
editor in the first instance to report the allegations
immediately
to the appropriate minister and only to consider
publication in his
newspaper if convinced that no effective action
had been taken.
On this aspect of the case I am in agreement with
the views
expressed by Sir John Donaldson M.R. in his judgment in
the Court
of Appeal.
Finally, what of the future? The
editors said in their
evidence that they might try to persuade
other members of the
Security Services to draw upon their Service
experience and
comment upon the allegations in Spycatcher.
The Government
therefore asks for an injunction in wide terms that
will restrain
- 27 -
the publication of any material
that the media may obtain from
such sources. The object of this
injunction is to stop the media
from tempting other members of the
Security Services from
breaking their obligation of secrecy. The
editors were, however,
giving evidence at the trial of this action
and not in the light of
the judgments that have now been
delivered. It has now been
made clear beyond peradventure that
members of the Security
Services owe a lifelong duty not to
discuss their service experience
with the media. I would not be
prepared to grant an injunction on
the premise that both the media
and members of the Security
Service are likely to disregard this
obligation. If a journalist
should try to tempt a member of the
Security Services to follow
Wright's example I would expect that
journalist to be seen off in
peremptory terms. If unhappily a
journalist should find another
weak link then I would trust the
journalist's editor not to publish
unless he was convinced that it
was in the public interest to do
so. Ultimately, if we are to have
an efficient Security Service we
have to trust its members and if
we are to have a free press we
have to trust the editors.
I would therefore dismiss this
appeal save for the two issues
relating to future serialization by
"The Sunday Times" and the
propriety of the articles in
the "Observer" and "The Guardian" in
June
1986.
LORD GOFF OF CHIEVELEY
My Lords,
It is tempting in this case to
embark upon an exegesis of
the law relating to breach of
confidence. That temptation must
however, in my opinion, be
resisted - if only because, as I see the
case, subject to one
important and difficult point (which, to my
mind unfortunately,
does not seem to have been the subject of
argument in the courts
below), the applicable principles of law
appear to me to be
relatively straightforward and non-
controversial. This may well
be because I have derived so much
assistance from the judgments in
the courts below; though that
provides yet another reason why I
should not attempt to do more
than state the applicable principles
of law in broad terms.
I start with the broad general
principle (which I do not
intend in any way to be definitive) that
a duty of confidence
arises when confidential information comes to
the knowledge of a
person (the confidant) in circumstances where
he has notice, or is
held to have agreed, that the information is
confidential, with the
effect that it would be just in all the
circumstances that he
should be precluded from disclosing the
information to others. I
have used the word "notice"
advisedly, in order to avoid the (here
unnecessary) question of
the extent to which actual knowledge is
necessary; though I of
course understand knowledge to include
circumstances where the
confidant has deliberately closed his eyes
to the obvious. The
existence of this broad general principle
reflects the fact that
there is such a public interest in the
maintenance of confidences,
that the law will provide remedies for
their protection.
- 28 -
I realise that, in the vast
majority of cases, in particular
those concerned with trade
secrets, the duty of confidence will
arise from a transaction or
relationship between the parties -
often a contract, in which
event the duty may arise by reason of
either an express or an
implied term of that contract. It is in
such cases as these that
the expressions "confider" and "confidant"
are
perhaps most aptly employed. But it is well settled that a
duty of
confidence may arise in equity independently of such
cases; and I
have expressed the circumstances in which the duty
arises in broad
terms, not merely to embrace those cases where a
third party
receives information from a person who is under a duty
of
confidence in respect of it, knowing that it has been disclosed
by
that person to him in breach of his duty of confidence, but
also
to include certain situations, beloved of law teachers - where
an
obviously confidential document is wafted by an electric fan
out
of a window into a crowded street, or when an obviously
confidential
document, such as a private diary, is dropped in a
public place,
and is then picked up by a passer-by. I also have in
mind the
situations where secrets of importance to national
security come
into the possession of members of the public - a
point to which I
shall refer in a moment. I have however
deliberately avoided the
fundamental question whether, contract
apart, the duty lies simply
"in the notion of an obligation of
conscience arising from
the circumstances in or through which the
information was
communicated or obtained" (see Moorgate Tobacco
Co. Ltd,
v. Philip Morris Ltd. (No. 2) [1984] 156 C.L.R. 414, 437
per
Deane J., and see also Seager v. Copydex Ltd. [1967] 1
W.L.R.
923, 931 per Lord Denning M.R.), or whether
confidential
information may also be regarded as property (as to
which see Dr.
Francis Gurry's valuable monograph on Breach of
Confidence at pp.
46-56 and Professor Birks' Introduction
to the Law of Restitution
at pp. 343-44). I would also, like
Megarry J. in Coco v. A.N.
Clark (Engineers) Ltd. [1969]
R.P.C. 41 at p. 48, wish to keep
open the question whether
detriment to the plaintiff is an essential
ingredient of an action
for breach of confidence. Obviously,
detriment or potential
detriment to the plaintiff will nearly always
form part of his
case; but this may not always be necessary.
Some possible cases
where there need be no detriment are
mentioned in the judgment of
Megarry J. to which I have just
referred (at p. 48), and in Gurry
on Breach of Confidence (1984)
at pp. 407-8. In the present
case, the point is immaterial, since
it is established that in
cases of Government secrets the Crown
has to establish not only
that the information is confidential, but
also to its "detriment"
in the sense that the public interest
requires that it should not
be published. That the word
"detriment" should be
extended so far as to include such a case
perhaps indicates that
everything depends upon how wide a
meaning can be given to the
word "detriment" in this context.
To this broad general principle,
there are three limiting
principles to which I wish to refer. The
first limiting principle
(which is rather an expression of the
scope of the duty) is highly
relevant to this appeal. It is that
the principle of confidentiality
only applies to information to
the extent that it is confidential.
In particular, once it has
entered what is usually called the public
domain (which means no
more than that the information in
question is so generally
accessible that, in all the circumstances, it
cannot be regarded
as confidential) then, as a general rule, the
principle of
confidentiality can have no application to it. I shall
be
reverting to this limiting principle at a later stage.
- 29 -
The second limiting principle is
that the duty of confidence
applies neither to useless
information, nor to trivia. There is no
need for me to develop
this point.
The third limiting principle is of
far greater importance. It
is that, although the basis of the
law's protection of confidence is
that there is a public interest
that confidences should be preserved
and protected by the law,
nevertheless that public interest may be
outweighed by some other
countervailing public interest which
favours disclosure. This
limitation may apply, as the learned judge
pointed out, to all
types of confidential information. It is this
limiting principle
which may require a court to carry out a
balancing operation,
weighing the public interest in maintaining
confidence against a
countervailing public interest favouring
disclosure.
Embraced within this limiting
principle is, of course, the so
called defence of iniquity. In
origin, this principle was narrowly
stated, on the basis that a
man cannot be made the "confidant of
a crime or a fraud"
(see Gartside v. Outram (1857) 26 L.J.Ch. 113
at p. 114,
per Sir William Page Wood V.-C.). But it is now clear
that
the principle extends to matters of which disclosure is
required
in the public interest (see Beloff v. Pressdram Ltd. [1973]
1
All E.R. 241, 260 per Ungoed-Thomas J., and Lion
Laboratories
Ltd, v. Evans [1985] 1 Q.B. 526, 550, per
Griffiths L.J. (as he then
was)). It does not however follow that
the public interest will in
such cases require disclosure to the
media, or to the public by the
media. There are cases in which a
more limited disclosure is all
that is required (see Francome
v. Mirror Group Newspapers Ltd.
[1984] 1 W.L.R. 892). A
classic example of a case where limited
disclosure is required is
a case of alleged iniquity in the Security
Services. Here there
are a number of avenues for proper
complaint; these are set out in
the -judgment of Sir John Donaldson
M.R. (see [1988] 2 W.L.R. 805,
877-78). Like my noble and learned
friend, Lord Griffiths, I find
it very difficult to envisage a case of
this kind in which it will
be in the public interest for allegations
of such iniquity to be
published in the media. In any event, a
mere allegation of
iniquity is not of itself sufficient to justify
disclosure in the
public interest. Such an allegation will only do
so if, following
such investigations as are reasonably open to the
recipient, and
having regard to all the circumstances of the case,
the allegation
in question can reasonably be regarded as being a
credible
allegation from an apparently reliable source.
In cases concerned with Government
secrets, as appears
from the judgments of two Chief Justices - of
Lord Widgery C.J.
in Attorney General v. Jonathan Cape Ltd.
[1976] 1 Q.B. 752, 770,
and of Mason C.J. (then Mason J.) in
Commonwealth of Australia
v. John Fairfax & Sons Ltd.
(1980) 147 C.L.R. 39, 51-53 - it is
incumbent upon the Crown, in
order to restrain disclosure of
Government secrets, not only to
show that the information is
confidential, but also to show that
it is in the public interest that
it should not be published. The
relevant passages in the above
judgments are set out in the speech
of my noble and learned
friend, Lord Keith of Kinkel, and I need
not repeat them. The
reason for this additional requirement in
cases concerned with
Government secrets appears to be that,
although in the case of
private citizens there is a public
interest that confidential
- 30 -
information should as such be
protected, in the case of
Government secrets the mere fact of
confidentiality does not alone
support such a conclusion, because
in a free society there is a
continuing public interest that the
workings of government should
be open to scrutiny and criticism.
From this it follows that, in
such cases, there must be
demonstrated some other public interest
which requires that
publication should be restrained.
Finally, I wish to observe that I
can see no inconsistency
between English law on this subject and
article 10 of the European
Convention on Human Rights. This is
scarcely surprising, since we
may pride ourselves on the fact that
freedom of speech has
existed in this country perhaps as long as,
if not longer than, it
has existed in any other country in the
world. The only difference
is that, whereas article 10 of the
Convention, in accordance with
its avowed purpose, proceeds to
state a fundamental right and then
to qualify it, we in this
country (where everybody is free to do
anything, subject only to
the provisions of the law) proceed rather
upon an assumption of
freedom of speech, and turn to our law to
discover the established
exceptions to it. In any event I conceive
it to be my duty, when I
am free to do so, to interpret the law
in accordance with the
obligations of the Crown under this treaty.
The exercise of the
right to freedom of expression under article 10
may be subject to
restrictions (as are prescribed by law and are
necessary in a
democratic society) in relation to certain prescribed
matters,
which include "the interests of national security"
and
"preventing the disclosure of information received in
confidence."
It is established in the jurisprudence of the
European Court of
Human Rights that the word "necessary"
in this context implies
the existence of a pressing social need,
and that interference with
freedom of expression should be no more
than is proportionate to
the legitimate aim pursued. I have no
reason to believe that
English law, as applied in the courts,
leads to any different
conclusion.
In the present case, it is
possible to start with two simple
propositions. First, Peter
Wright, as a member of the Security
Service, owed to the Crown a
lifelong duty not to disclose
confidential information which came
into his possession in the
course of his period of service with
the Security Service. Second,
as appears to have been common
ground in these proceedings,
whether or not he may have been
justified in disclosing certain
matters to an appropriate person
on the ground of iniquity,
nevertheless by publishing the book as
a whole he committed a
clear and flagrant breach of his duty. So
far as this lifelong duty
of confidence is concerned, I am in
respectful agreement with the
observations made upon it in the
speech of my noble and learned
friend, Lord Griffiths, subject
only to this, that I suspect that,
although there may be a
theoretical exception relating to trivia of
the most humdrum kind,
nevertheless in practice any such
exception is of no importance
and can be ignored. Be that as it
may, these two propositions
provided the starting point for the
argument for the Crown so
powerfully expressed by Mr. Alexander
on behalf of the
Attorney-General. His basic submission was as
follows. Although
the effect of Peter Wright's breach of
confidence was that the
confidential information in Spycatcher has
been widely
disseminated throughout the world, nevertheless he
remains to this
day, and apparently for ever, under a duty of
confidence in
respect of that information, because he cannot by
- 31 -
his own wrongful act destroy his
own obligation of confidentiality.
Anybody who has put the book in
circulation knowing that the
information in it derived from Peter
Wright who had disclosed it
in breach of confidence, must likewise
have committed a breach of
confidence; and since Peter Wright's
duty of confidence still exists,
the same must be true to this
day. The pith of Mr. Alexander's
argument can be extracted from
the following paragraphs in the
Crown's printed case:
"27. In so far as there are
suggestions in the judgments so
far that Mr. Wright's position is
different because he cannot
profit from his own wrong, this cannot
provide the basis of
an independent entitlement running against
Mr. Wright but
not against the other defendants. It can only mean
that
since dissemination of Spycatcher is entirely the
result of
Mr. Wright's wrongdoing, the duty of confidence has
not
been destroyed and the Crown is entitled to enforce it. If
a
good claim runs against Mr. Wright, it does so because of
the
surviving duty of confidentiality in respect of the
contents of
Spycatcher and this continues to attach in
conscience to
third parties.
"28. Publication of the book
in other countries by or on
behalf of Mr. Wright does not
therefore affect the
obligation of confidence owed by Mr. Wright
and his agents
or by third parties. In relation to Mr. Wright it
is
submitted that his duty is not affected by publication
abroad.
'The Sunday Times' being agents of Mr. Wright
remain similarly
bound. In relation to the 'Observer' and
'The Guardian' it is
submitted that the proper view is that
as the obligation of
confidence is still attached to Mr.
Wright and his agents, it also
continued to attach in
conscience to third parties. . . . ."
This appeared to me at the time of
the hearing, and still appears
to me, to be a formidable argument,
which requires to be
addressed. It has caused me therefore to
consider the basic
premise upon which it rests, viz. the
continuing duty of confidence
said to be owed by Peter Wright.
As I have already indicated, it is
well established that a
duty of confidence can only apply in
respect of information which
is confidential: see Saltman
Engineering Co. Ltd, v. Campbell
Engineering Co. Ltd. [1948]
65 R.P.C. 203, 215 per Lord Greene
M.R.. From this it
should logically follow that, if confidential
information which is
the subject of a duty of confidence ceases to
be confidential,
then the duty of confidence should cease to bind
the confidant.
This was held to be so in O. Mustad & Son v.
Dosen
(1928) [1964] 1 W.L.R. 109 (Note). That was however a case
in
which the confidential information was disclosed by the
confider
himself; and stress was placed on this point in a later
case where
the disclosure was not by the confider but by a third
party and in
which Mustad v. Dosen was distinguished (see
Cranleigh Precision
Engineering Ltd, v. Bryant [1965] 1
W.L.R. 1293). It was later held,
on the basis of the Cranleigh
Precision Engineering case, that, if
the confidant is not
released when the publication is by a third
party, then he cannot
be released when it is he himself who has
published the
information (see Speed Seal Products Ltd, v.
Paddington
[1985] 1 W.L.R. 1327). I have to say however that,
- 32 -
having studied the judgment of
Roskill J. in the Cranleigh
Precision Engineering case
[1965] 1 W.L.R. 1293, it seems to me
that the true basis of the
decision was that, in reliance on the
well known judgment of
Roxburgh J. in the "springboard" case
Terrapin Ltd,
v. Builders' Supply Co. (Hayes) Ltd, (now reported in
[1967]
R.P.C. 375), the defendant was in breach of confidence in
taking
advantage of his own confidential relationship with the
plaintiff
company to discover what a third party had published and
in making
use, as soon as he left the employment of the plaintiff
company,
of information regarding the third party's patent which
he had
acquired in confidence (see [1965] 1 W.L.R. at p. 1319).
The
reasoning of Roskill J. in this case has itself been the
subject of
criticism (see e.g. Gurry on Breach of Confidence
at pp. 246-7);
but in any event it should be regarded as no more
than an
extension of the springboard doctrine, and I do not
consider that it
can support any general principle that, if it is
a third party who
puts the confidential information into the
public domain, as
opposed to the confider, the confidant will not
be released from
his duty of confidence. It follows that, so far
as concerns
publication by the confidant himself, the reasoning in
the Speed
Seal case [1985] 1 W.L.R. 1327 (founded as it is
upon the
Cranleigh Precision Engineering case) [1965] 1
W.L.R. 1293 cannot,
in my mind, be supported. I recognise that a
case where the
confider himself publishes the information might be
distinguished
from other cases on the basis that the confider, by
publishing the
information, may have implicitly released the
confidant from his
obligation. But that was not how it was put in
Mustad v. Dosen
[1964] 1 W.L.R. 109, 111, in which Lord
Buckmaster stated that,
once the disclosure had been made by the
confider to the world,
"the secret, as a secret, had ceased
to exist". For my part, I
cannot see how the secret can
continue to exist when the
publication has been made not by the
confider but by a third
party.
Even so, it has been held by the
learned judge, and by all
members of the Court of Appeal in the
present case, that Peter
Wright cannot be released from his duty
of confidence by his own
publication of the confidential
information, apparently on the basis
that he cannot be allowed to
profit from his own wrong. I feel
bound to say that, in my
opinion, this proposition calls for careful
examination.
The statement that a man shall not
be allowed to profit
from his own wrong is in very general terms,
and does not of
itself provide any sure guidance to the solution
of a problem in
any particular case. That there are groups of
cases in which a
man is not allowed to profit from his own wrong,
is certainly true.
An important section of the law of restitution
is concerned with
cases in which a defendant is required to make
restitution in
respect of benefits acquired through his own
wrongful act -
notably cases of waiver of tort; of benefits
acquired by certain
criminal acts; of benefits acquired in breach
of a fiduciary
relationship; and, of course, of benefits acquired
in breach of
confidence. The plaintiff's claim to restitution is
usually enforced
by an account of profits made by the defendant
through his wrong
at the plaintiff's expense. This remedy of an
account is
alternative to the remedy of damages, which in cases of
breach of
confidence is now available, despite the equitable
nature of the
wrong, through a beneficent interpretation of the
Chancery
-33-
Amendment Act 1858 (Lord Cairns'
Act), and which by reason of
the difficulties attending the taking
of an account is often
regarded as a more satisfactory remedy, at
least in cases where
the confidential information is of a
commercial nature, and
quantifiable damage may therefore have been
suffered.
I have to say, however, that I
know of no case (apart from
the present) in which the maxim has
been invoked in order to hold
that a person under an obligation is
not released from that
obligation by the destruction of the
subject matter of the
obligation, on the ground that that
destruction was the result of
his own wrongful act. To take an
obvious case, a bailee who by
his own wrongful, even
deliberately wrongful, act destroys the
goods entrusted to him, is
obviously relieved of his obligation as
bailee, though he is of
course liable in damages for his tort.
Likewise a nightwatchman
who deliberately sets fire to and
destroys the building he is
employed to watch; and likewise also
the keeper at a zoo who turns
out to be an animal rights
campaigner and releases rare birds or
animals which escape
irretrievably into the countryside. On this
approach, it is difficult
to see how a confidant who publishes the
relevant confidential
information to the whole world can be under
any further obligation
not to disclose the information, simply
because it was he who
wrongfully destroyed its confidentiality.
The information has, after
all, already been so fully disclosed
that it is in the public domain:
how, therefore, can he thereafter
be sensibly restrained from
disclosing it? Is he not even to be
permitted to mention in public
what is now common knowledge? For
his wrongful act, he may be
held liable in damages, or may be
required to make restitution;
but, to adapt the words of Lord Buck
master, the confidential
information, as confidential information,
has ceased to exist, and
with it should go, as a matter of
principle, the obligation of
confidence. In truth, when a person
entrusts something to another
- whether that thing be a physical'
thing such as a chattel, or
some intangible thing such as
confidential information - he relies
upon that other to fulfil his
obligation. If he discovers that the
other is about to commit a
breach, he may be able to impose an
added sanction against his
doing so by persuading the court to
grant an injunction; but if
the other simply commits a breach and
destroys the thing, then the
injured party is left with his remedy
in damages or in
restitution. The subject matter is gone: the
obligation is
therefore also gone: all that is left is the remedy or
remedies
for breach of the obligation. This approach appears to
be
consistent with the view expressed by the Law Commission in
their
Report on Breach of Confidence (Cmnd. 8388), paragraph 4.30
(see
also the Law Commission's Working Paper No. 58 at
paragraphs
100-101). It is right to say, however, that they may
have had
commercial cases in mind, rather than a case such as
the present.
It is however also of interest that, in the Fairfax
case
(1980) 147 C.L.R. 39, 54, Mason J. (as he then was) was not
prepared
to grant an injunction to restrain further publication of a
book
by the defendants on the ground of breach of confidence,
because
the limited publication which had taken place was
sufficient to
cause the detriment which the plaintiffs, the
Commonwealth of
Australia, apprehended. If however the
defendants had published
the book in breach of confidence, it is
difficult to see why, on
the approach so far accepted in the
present case, the defendants
should not have remained under a
duty of confidence despite the
publication and so liable to be
restrained by injunction.
- 34 -
It is not to be forgotten that
wrongful acts can be
inadvertent, as well as deliberate; and yet
it is apparently
suggested that, irrespective of the character of
his wrongdoing, the
confidant will be held not to be released from
his obligation of
confidence. Furthermore, the artificial
perpetuation of the
obligation, despite the destruction of the
subject matter, leads to
unacceptable consequences. Take the case
of confidential
information with which we are here concerned. If
the confidant
who has wrongfully published the information so that
it has
entered the public domain remains under a duty of
confidence, so
logically must also be anybody who, deriving the
information from
him, publishes the information with knowledge
that it was made
available to him in breach of a duty of
confidence. If Peter
Wright is not released from his obligation of
confidence neither, in
my opinion, are Heinemann Publishers Pty.
Ltd., nor Viking Penguin
Inc., nor anybody who may hereafter
publish or sell the book in
this country in the knowledge that it
derived from Peter Wright -
even booksellers who have in the past,
or may hereafter, put the
book on sale in their shops, would
likewise be in breach of duty.
If it is suggested that this is
carrying the point to absurd lengths,
then some principle has to
be enunciated which explains why the
continuing duty of confidence
applies to some, but not others, who
have wrongfully put the book
in circulation. Such a distinction
cannot however be explained by
reliance upon the general
statement that a man may not profit from
his own wrong.
I have naturally been concerned by
the fact that so far in
this case it appears to have been accepted
on all sides that Peter
Wright should not be released from his
obligation of confidence. I
cannot help thinking that this
assumption may have been induced,
in part at least, by three
factors - first, the fact that Peter
Wright himself is not a party
to the litigation, with the result that
no representations - have
been made on his behalf; second, the
wholly unacceptable nature of
his conduct; and third, the fact that
he appears now to be able,
with impunity, to reap vast sums from
his disloyalty. Certainly,
the prospect of Peter Wright, safe in his
Australian haven,
reaping further profits from the sale of his book
in this country
is most unattractive. The purpose of perpetuating
Peter Wright's
duty of confidence appears to be, in part to deter
others, and in
part to ensure that a man who has committed so
flagrant a breach
of his duty should not be enabled freely to
exploit the formerly
confidential information, placed by him in the
public domain, with
impunity. Yet the real reason why he is able
to exploit it is
because he has found a safe place to do so. If
within the
jurisdiction of the English courts, he would be held
liable to
account for any profits made by him from his wrongful
disclosure,
which might properly include profits accruing to him
from any
subsequent exploitation of the confidential information
after its
disclosure: and, in cases where damages were regarded as
the
appropriate remedy, the confidant would be liable to
compensate
the confider for any damage, present or future,
suffered by him by
reason of his wrong. So far as I can see, the
confider must be
content with remedies such as these.
I have considered whether the
confidant who, in breach of
duty, places confidential information
in the public domain, might
remain at least under a duty
thereafter not to exploit the
information, so disclosed, for his
own benefit. Suppose that the
- 35 -
confidant in question was a man
who, unwisely, has remained in
this country, and has written a
book containing confidential
information and has disposed of the
rights to publication to an
American publishing house, whose
publication results in the
information in the book entering the
public domain. The question
might at least arise whether he is
free thereafter to dispose of
the film rights to the book. To me,
however, it is doubtful
whether the answer to this question lies
in artificially prolonging
the duty of confidence in information
which is no longer
confidential. Indeed, there is some ground for
saying that the true
answer is that the copyright in the book,
including the film rights,
are held by him on constructive trust
for the confider - so that
the remedy lies not in breach of
confidence, but in restitution or
in property, whichever way you
care to look at it (see, in this
connection, [1988] 2 W.L.R.805,
899, per Dillon L.J.).
At all events, since the point was
not argued before us, I
wish to reserve the question whether, in a
case such as the
present, some limited obligation (analogous to
the springboard
doctrine) may continue to rest upon a confidant
who, in breach of
confidence, destroys the confidential nature of
the information
entrusted to him. It must not however be forgotten
that cases of
breach of confidence may well involve questions of
property (in
particular, copyright) as well as questions of
personal liability; and
that, in a case involving national
security rather than a personal
or commercial secret, where
disclosure in breach of confidence
may be damaging to the whole
community rather than to an
individual or a corporation, the
guilty confidant may be liable to
criminal prosecution. It is only
if we take all these matters into
account that we can see such a
case in the round. Even so, let
us not forget that we have in the
past seen convicted criminals,
on release from prison, being
invited by newspapers to give an
account of their experiences, no
doubt for substantial sums. This
is highly offensive to many
people? but I doubt whether the mere
fact that such activities are
offensive provides of itself an
appropriate basis for defining the
scope of a confidant's civil
obligations at common law. And let us
not forget that, in the
present case, it is Peter Wright's absence
from this country which
renders him immune from prosecution, and,
in Australia, it now
appears, also immune from a claim to
restitution, founded upon his
unjust enrichment from his undoubted
wrong at the expense of the
whole community. It is perhaps this
immunity from process which
prompts a temptation to continue his
duty of confidence, despite
the destruction of the subject matter
of that duty.
I fear that I have dealt at too
great length with this point,
which has troubled me very much. I
need not, however, decide it
in the present case (and I stress
that, in the absence of argument,
I am most reluctant to do so)
for a very simple reason. Even if
my provisional view on the point
is wrong, and Peter Wright
remains under a continuing duty of
confidence, so that those who
derive the information in the book
from him would prima facie
also be under a duty of confidence, I
nevertheless take the view in
the present case that to prevent the
publication of the book in
this country would, in the present
circumstances, not be in the
public interest. It seems to me to be
an absurd state of affairs
that copies of the book, all of course
originating from Peter
Wright - imported perhaps from the United
States - should now be
widely circulating in this country, and
that at the same time other
- 36 -
sales of the book should be
restrained. To me, this simply does
not make sense. I do not see
why those who succeed in obtaining
a copy of the book in the
present circumstances should be able to
read it, while others
should not be able to do so simply by
obtaining a copy from their
local bookshop or library. In my
opinion, artificially to restrict
the readership of a widely
accessible book in this way is
unacceptable: if the information in
the book is in the public
domain and many people in this country
are already able to read
it, I do not see why anybody else in this
country who wants to
read it should be prevented from doing so.
For these reasons, I would reject Mr. Alexander's main
argument; and I therefore feel able to consider the specific issues
in this case unfettered by its
otherwise considerable force. Those
issues are as follows:
(1) Publication by the "Observer" and "The Guardian"
(a) Publication on 22 and 23 June 1986
This issue has justly been
described as stale by my noble
and learned friend Lord Griffiths:
and the extent of the disclosure
of information on this occasion
appears to be slight in comparison
with what has since taken
place. Indeed the point appears now to
be, at most, of only
marginal relevance. In these circumstances, I
trust that I will be
forgiven if I deal with it comparatively briefly.
On a point such as this I am
reluctant to hold that the
learned judge, whose decision was
upheld by a majority of the
Court of Appeal, erred in concluding
that, on balance, there was
no breach of confidence, and that the
publications should not be
restrained by injunction. He said at p.
856:
'The public interest in freedom of
the press to report the
court action outweighs, in my view, the
damage, if any, to
national security interests that the articles
might, arguably,
cause. I can see no 'pressing social need' that
is offended
by these articles. The claim for an injunction against
these
two newspapers in June 1986 was not, in my
opinion,
'proportionate to the legitimate aim pursued.'"
Like Dillon and Bingham L.JJ., I
agree that the learned judge, as
a result of his having performed
the balancing exercise which he
was bound to perform, was entitled
to reach that conclusion. I
confess that I, like Bingham L.J.,
have not found the point easy;
and I have of course taken into
account the strong dissent of Sir
John Donaldson M.R. on this
point. But the articles were very
short: they gave little detail
of the allegations: a number of the
allegations had been made
before: and in so far as the articles
went beyond what had
previously been published, I do not consider
that the judge erred
in holding that, in the circumstances, the
claim to an injunction
was not proportionate to the legitimate aim
pursued.
(b) Further Publication
The most important, and yet to me
the most
straightforward, issue in the case is whether the
"Observer" and
"The Guardian" should now be
free to comment on the book, and
- 37 -
to publish as much of Spycatcher
as they are permitted to do,
under the fair dealing exception in
the law of copyright. The
learned judge, and all three members of
the Court of Appeal, have
held that both should be free to do so.
I have no doubt that they
were right to reach this conclusion. The
extent of the publication
of Spycatcher which had taken
place at the date of trial is set
out in the judgment of the
learned judge (see [1988] 2 W.L.R. 805,
820-822). No doubt its
publication has continued unabated since
that date. On any
sensible view the information contained in the
book was, at the
date of trial, in the public domain. For this
reason alone, in my
opinion, the injunctions against the "Observer"
and "The
Guardian" should now be discharged.
For the Crown it was submitted, on
the basis of the
evidence of Sir Robert Armstrong, that, despite
the worldwide
circulation of Spycatcher, nevertheless the
injunction should be
continued having regard to certain matters,
which can broadly be
described as matters of national security.
The learned judge
rejected this argument on the facts, and his
conclusion was
accepted by the Court of Appeal; I, too, agree with
his conclusion
on the facts, subject to the rider contained in the
speech of my
noble and learned friend, Lord Griffiths. In my
opinion, however,
these matters are all in any event irrelevant,
having regard to the
facts that the information is now in the
public domain and
therefore no longer confidential.
I need not set out these various
matters again: they are all
listed in the judgment of the learned
judge (see [1988] 2 W.L.R.
805, 860-861), and repeated in the
speech of my noble and learned
friend, Lord Griffiths. What is
striking about the comments of the
judge upon them, is that they
reflect the fact that such damage
as can be done to the national
security by Peter Wright's breach
of confidence, or indeed by
others who have published or may
hereafter publish Spycatcher,
has already been done. We read such
comments as "This damage
has already occurred;" or "The
detriment is a fait
accompli;" and so on. These comments reflect,
to my mind, the
irrelevancy of these matters to the issue before
your Lordships'
House, once the information had entered the public
domain.
In our civil law there is, so far
as I am aware, no ground
for restraining publication of
information relating to national
security other than breach of
confidence. Information relating to
national security is, of its
very nature, prima facie confidential
If a person into whose
possession it comes publishes it, and is (as
he usually will be)
aware of its confidential nature, he will prima
facie be guilty of
a breach of confidence; any such publication, if
threatened, can
therefore be restrained by injunction as a
threatened breach of
confidence, subject of course to the usual
limitations upon the
duty of confidence. One of these limitations
is that information
is no longer confidential once it has entered
the public domain;
once information relating to national security
has entered the
public domain, I find it difficult to see upon what
basis further
disclosure of such information can be restrained.
I realise that article 10 of the
European Convention of
Human Rights draws a distinction between
national security and
matters of confidence. It is very
understandable that it should do
so, since national systems may
draw the same distinction,
- 38 -
especially in their criminal laws,
and in any event national security
is one of the most important
areas in which secrecy is justified.
But, as I have said, so far
as I am aware English civil law draws
no such distinction of this
kind, all confidential matters (including
matters of national
security) being protected as such.
It follows that I find myself to
be in agreement with the
opinion expressed by my noble and learned
friend Lord Oliver of
Aylmerton in the interlocutory proceedings
(see [1987] 1 W.L.R.
1248, 1317), that the injunction against
these two newspapers
involved a misuse of the injunctive remedy
against them. Later in
his speech, my noble and learned friend
said (at p. 1318) with
reference to publication by these two
newspapers:
"The injunction was
originally imposed in order to preserve
the confidentiality of the
then unpublished allegations. That
confidentiality has now,
without fault on the part of the
appellants, been irrevocably
destroyed and, no doubt,
destroyed as a result of a calculated
policy adopted by Mr.
Wright and those associated with him. I am
as reluctant as
any of your Lordships to acknowledge that the
intention of
the court has been effectively flouted by a
public
dissemination which the courts in this jurisdiction
are
powerless to prevent. But once that has occurred and
the
proscribed material is available for public ventilation
and
discussion by everybody except those subject to the
existing
restraint, I question whether it can be right to continue
that
restraint against parties in no way concerned with
flouting
the court's orders and to interfere with their
legitimate
business of publishing and commenting upon matters
already
in the public domain for the purpose, not of preventing
that
which can no longer be prevented, but of punishing Mr.
Wright
and providing an example to others. I can well see
- and this
equally applies to the second argument to which I
have referred -
that the denial to Mr. Wright of the
audience that he most desires
to reach may provide a
cogent reason why the Attorney-General may
wish to
maintain the injunctions, but I am not persuaded that,
as
against these appellants, it constitutes a proper
justification
for them. It does so only if, in seeking further to
publish
what is already public, they can properly be said to
be
threatening some invasion of private law right of the
Crown."
I respectfully agree. The
point does not, in my opinion, require
further comment or
elaboration.
(2) "The Sunday Times"
(a) Publication on 12 July 1987
All the relevant facts are set out
in the judgment of the
learned judge. He, and a majority of the
Court of Appeal, have
held this publication to have constituted a
breach of confidence.
Only Bingham L.J. formed a different view,
on the basis that it
was then a virtual certainty that widespread
publication of the
book in the United States would almost
immediately take place. I
am, with all respect, unable to accept
Bingham L.J.'s generous
approach. In my opinion, he has promoted a
plea in mitigation to
- 39 -
the status of a substantive
defence. 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 substantial extract from Spycatcher
published in "The
Sunday Times" included, as the learned judge
held, a good
deal of material in respect of which the public
interest to be
served by disclosure would not be thought to
outweigh the
interests of national security. I have no doubt that
it was in
this sense that the judge described the extract as
"indiscriminate,"
whatever exercise the editor may himself have
undertaken in making
his choice. In my opinion, therefore, the
publication in "The
Sunday Times" was plainly in breach of
confidence; so, if
discovered in time, it could have been restrained
by injunction. I
can see no reason why 'The Sunday Times" should
not be liable
to account for profits flowing from their wrong,
subject however
to all the difficulties attendant on this remedy
and its (perhaps
excessively) technical nature.
(b) Subsequent Serialisation
If it were correct that Peter
Wright owed the Crown a
continuing duty of confidence in respect
of the information
contained in Spycatcher, I do not know
how it would be possible to
escape the conclusion that "The
Sunday Times," deriving as it does
its right to publish from
Peter Wright, and having by its own
breach of confidence
contributed significantly to putting Spycatcher
into the
public domain in this country, should not likewise be
subject to
such a continuing duty. I echo the observation of
Bingham L.J.
(see [1988] 2 W.L.R. 805, 914 that it would be "to
some
extent anomalous that 'The Sunday Times' should be free to
do what
Mr. Wright and his Australian publishers could not."
However,
for the reasons I have already given, even if (subject to
my
doubts) Peter Wright remains under a continuing duty
of
confidentiality, the public interest does not now require that
'The
Sunday Times," despite the fact that its right to
publish in the
past and today derives from Peter Wright, and
despite its previous
breach of confidence, should be restrained
from serialising further
extracts from the book.
(3) Injunction as to the future
For the reasons given by my noble
and learned friends, Lord
Keith of Kinkel and Lord Griffiths, I
too would refuse to grant
such an injunction.
For these reasons, I find myself
to be in agreement on all
issues with the conclusions reached by
the learned judge and by
differing majorities of the Court of
Appeal I would therefore
dismiss the appeal by the Attorney
General and the cross-appeals
by 'The Sunday Times."
- 40 -
LORD JAUNCEY OF TULICHETTLE
My Lords,
I have had the advantage of
reading in draft the speech of
my noble and learned friend, Lord
Keith of Kinkel, and I agree
that both appeals and also the cross
appeal of 'The Sunday Times"
should be dismissed. I further
agree with the reasons which my
noble and learned friend has given
for this result subject only to
the one qualification herein after
mentioned.
I should like to add a few words
about the position of "The
Sunday Times" in relation to
the future serialisation of Spycatcher.
In the absence of
full argument I find it very difficult to accept
the proposition
that Peter Wright can, by his own breach of duly,
discharge
himself from any further restraint on publication of the
information
confided to him during and in the course of his
service. I agree
therefore with my noble and learned friend Lord
Griffiths that the
question of future serialisation should be
approached upon the
basis that neither he nor any publisher on his
behalf would be
permitted to publish Spycatcher in this country.
Like my
noble and learned friend I find the question a difficult
one but
if I had been of opinion that 'The Sunday Times" alone
had
the present ability in the United Kingdom to serialise
Spycatcher
without let or hindrance from Peter Wright or his
publishers and
that such ability derived solely from the licence
which that
newspaper had obtained from one or other of those
persons, I would
have been in favour of restraining the "The
Sunday Times"
from further serialisation for the reasons which he
has given.
However I do not consider that such is the position.
The courts of the United Kingdom
will not enforce copyright
claims in relation to every original
literary work. Equitable relief
has been refused -where the work
contained false statements
calculated to deceive the public
(Slingsby v. Bradford Patent Truck
and Trolley Co. [1905]
W.N. 122 [1906] W.N. 51) and where the work
was of a grossly
immoral tendency (Glyn v. Weston Feature Film
Co. [1916] 1
Ch. 261). In a passing off action, Bile Bean
Manufacturing Co.
v. Davidson (1906) 23 R.P.C. 725 the Second
Division of the
Court of Session refused relief to a company which
had perpetrated
a deliberate fraud on the public by a series of
false factual
statements about its product. Lord Justice-Clerk
Macdonald at p.
734 said:
"No man is entitled to obtain
the aid of the law to protect
him in carrying on a fraudulent
trade, but the cases quoted
at the debate by the Lord Ordinary
establish, as I think,
very clearly that the courts have in the
past given effect to
the principle which allows nothing to the man
who comes
before the seat of justice with a turpis causa."
The publication of Spycatcher
was against the public interest and
was in breach of the duty of
confidence which Peter Wright owed
to the Crown. His action reeked
of turpitude. It is in these
circumstances inconceivable that a
United Kingdom court would
afford to him or his publishers any
protection in relation to any
copyright which either of them may
possess in the book. That
being so anyone can copy Spycatcher
in whole or in part without
fear of effective restraint by Peter
Wright or those claiming to
- 41 -
derive title from him. It follows
that the future ability of 'The
Sunday Times" to serialise
Spycatcher does not derive solely from
their licence. They
are free to publish without reference thereto
and are thus for
practical purposes in no better position than any
other newspaper.
