CONSEIL
DE ĽEUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE ĽHOMME
EUROPEAN COURT OF HUMAN RIGHTS
COURT (PLENARY)
CASE OF THE SUNDAY TIMES v. THE UNITED KINGDOM
(Application no. 6538/74)
JUDGMENT
STRASBOURG
26 April 1979
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
In the Sunday Times case,
The European Court of Human Rights, taking its decision in plenary
session in application of Rule 48 of the Rules of Court and composed of the
following judges:
Mr. G. BALLADORE PALLIERI, President,
Mr. G. WIARDA,
Mr. H. MOSLER,
Mr. M. ZEKIA,
Mr. J. CREMONA,
Mr. P. O'DONOGHUE,
Mrs. H. PEDERSEN
Mr. Thór VILHJÁLMSSON,
Mr. R. RYSSDAL,
Mr. W. GANSHOF VAN DER MEERSCH,
Sir Gerald FITZMAURICE,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. D. EVRIGENIS,
Mr. P.-H. TEITGEN,
Mr. G. LAGERGREN,
Mr. L. LIESCH,
Mr. F. GÖLCÜKLÜ,
Mr. F. MATSCHER,
Mr. J. PINHEIRO FARINHA,
Mr. E. GARCIA DE ENTERRIA,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private from 30 November to 2 December 1978
and from 27 to 29 March 1979,
Delivers the following judgment, which was adopted on the lastmentioned
date:
PROCEDURE
1. The Sunday Times case was referred to the Court by the European
Commission of Human Rights ("the Commission"). The case originated in
an application against the United Kingdom of Great Britain and Northern
Ireland lodged with the Commission on 19 January 1974 under Article 25
(art. 25) of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention") by the publisher (Times
2
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
Newspapers Limited), the editor (Mr. Harold Evans) and a group of
journalists of the British weekly newspaper The Sunday Times.
2. The Commission's request, to which was attached the report provided
for under Article 31 (art. 31) of the Convention, was lodged with the
registry of the Court on 15 July 1977, within the period of three months laid
down by Articles 32 para. 1 and 47 (art. 32-1, art. 47). The request referred
to Articles 44 and 48 (art. 44, art. 48) of the Convention and to the
declaration made by the United Kingdom recognising the compulsory
jurisdiction of the Court (Article 46) (art. 46). The purpose of the
Commission's request is to obtain a decision from the Court as to whether
or not the facts of the case disclose a breach by the respondent State of its
obligations under Article 10 (art. 10) of the Convention either alone or in
conjunction with Article 14 (art. 14+10) or Article 18 (art. 18+10).
3. The Chamber of seven judges to be constituted included, as ex officio
members, Sir Gerald Fitzmaurice, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr G. Balladore Pallieri, the
President of the Court (Rule 21 para. 3 (b) of the Rules of Court). On 28
July 1977, the President of the Court drew by lot, in the presence of the
Registrar, the names of the five other members, namely Mr. H. Mosler, Mr.
M. Zekia, Mr. P. O'Donoghue, Mr. R. Ryssdal and Mr. J. Pinheiro Farinha
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Mr. Balladore Pallieri assumed the office of President of the Chamber
(Rule 21 para. 5).
4. The President of the Chamber ascertained, through the Registrar, the
views of the Agent of the Government of the United Kingdom ("the
Government") and the Delegates of the Commission regarding the
procedure to be followed. By Order of 15 September 1977, he decided that
the Agent should have until 7 December 1977 to file a memorial and that
the Delegates should be entitled to file a memorial in reply within two
months from the date of the transmission of the Governmenťs memorial to
them by the Registrar.
The Governmenťs memorial was received at the registry on 8 December
1977. On 10 February 1978, the Delegates transmitted to the Court a
memorial which had been submitted to them on behalf of the applicants; the
Delegates indicated that they did not at that stage wish to express a view of
their own or to comment on the applicanťs memorial, but reserved the right
to do so at the oral hearings.
5. After consulting, through the Deputy Registrar, the Agent of the
Government and the Delegates of the Commission, the President directed by
an Order of 16 March 1978 that the oral proceedings should open on 24
April 1978. By an Order of 20 March 1978, he authorised the Agent to file,
not later than 7 April 1978, a supplementary memorial; this was received at
the registry on 6 April.
3
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
On 13 April, the Secretary to the Commission transmitted to the Court a
letter addressed to him on 10 April by the applicants, together with certain
documents enclosed with that letter.
6. The oral hearings were held in public at the Human Rights Building,
Strasbourg, on 24 and 25 April 1978.
There appeared before the Court:
- for the Government:
Mr. D. ANDERSON, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
The Rt. Hon. Peter ARCHER, M.P., Q.C., Solicitor-General,
Mr. N. BRATZA, Barrister-at-Law, Counsel,
Mr. R. RICKS, Treasury Solicitor's Department,
Mr. M. SAUNDERS, Law Officers' Department, Advisers;
- for the Commission:
Mr. J. FAWCETT, Principal Delegate,
Mr. J. CUSTERS,
Mr. J. FROWEIN, Delegates,
Mr. A. LESTER, Q.C.,
Mr. A. WHITAKER, Legal Manager,
Times Newspapers Ltd., assisting the Delegates under
Rule 29 para. 1, second sentence.
The Court heard the addresses and submissions of Mr. Archer for the
Government and of Mr. Fawcett, Mr. Frowein and Mr. Lester for the
Commission, as well as Mr. Lester's replies to questions put by certain
judges. During the course of the hearing, the Commission made available to
the Court other documents which it had received from the applicants.
7. The Chamber deliberated in private from 25 to 27 April.
At a meeting held in private on 27 October 1978 in Strasbourg, the
Chamber decided under Rule 48 to relinquish jurisdiction forthwith in
favour of the plenary Court, "considering that the case raise[d] serious
questions affecting the interpretation of the Convention ...".
Having obtained, through the Registrar, the agreement of the Agent of
the Government and the concurring opinion of the Delegates of the
Commission, the Court decided on 30 November that the proceedings
would continue without any further oral hearings (Rule 26).
AS TO THE FACTS
Historical
8. Between 1958 and 1961 Distillers Company (Biochemicals) Limited
("Distillers") manufactured and marketed under licence in the United
4
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
Kingdom drugs containing an ingredient initially developed in the Federal
Republic of Germany and known as thalidomide. The drugs were prescribed
as sedatives for, in particular, expectant mothers. In 1961 a number of
women who had taken the drugs during pregnancy gave birth to children
suffering from severe deformities; in the course of time there were some
450 such births in all. Distillers withdrew all drugs containing thalidomide
from the British market in November of the same year.
9. Writs against Distillers were issued, between 1962 and 1966, by the
parents of seventy of the deformed children on their own and on their
children's behalf. They contended that the cause of the deformities was the
effect on the foetus of thalidomide administered to the mother during
pregnancy, alleged that Distillers had been negligent in the production,
manufacture and marketing of the drugs and claimed damages. Distillers
denied negligence and put in issue the legal basis of the claims. A number of
actions were also brought in respect of persons alleged to have suffered
peripheral neuritis as a result of use of the drugs.
Of the seventy actions by parents, sixty-five were settled in 1968
following negotiations between the parties' legal advisers. In sixty-two of
the cases, the children were still alive and the settlement therefore required
court approval which was obtained. The basis of the settlement was that
each plaintiff, provided he withdrew his allegation of negligence, should
receive from Distillers a lump sum equal to 40 per cent of the amount he
would have recovered had his action wholly succeeded. Further proceedings
in the High Court in 1969 dealt with the assessment of damages in the cases
settled on the above-mentioned basis and, in the event, Distillers paid out
some  1,000,000 in respect of fifty-eight cases. Two cases were otherwise
disposed of and the amount of damages in the remaining two was still under
negotiation in July 1973.
10. The 1968 settlement did not cover five of the original seventy
actions, since the writs in those five cases had not been issued within the
three-year limitation period prescribed by English law. Leave to issue writs
out of time was subsequently granted ex parte by the court both in those five
cases and in respect of a further two hundred and sixty-one claims by the
parents or guardians of other deformed children. A further one hundred and
twenty-three claims had also been notified to Distillers in correspondence
but formal proceedings were not started by agreement between the parties.
Thus, by 1971, three hundred and eighty-nine claims in all were pending
against Distillers. Apart from a statement of claim in one case and a defence
delivered in 1969, no further steps were taken in those actions where writs
had been issued. Distillers had announced in February 1968 that they would
provide a substantial sum for the benefit of the remaining three hundred and
eighty-nine claimants and both sides were anxious to arrive at a settlement
out of court. The case in fact raised legal issues of considerable difficulty
5
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
under English law. Had any of the actions come on for trial, they would
have been heard by a professional judge sitting without a jury.
In 1971, negotiations began on a proposal by Distillers to establish a
charitable trust fund for all the deformed children other than those covered
by the 1968 settlement. The proposal was made subject to the condition that
all the parents accepted but five refused, one, at least, because payments out
of the fund would have been based on need. An application, on behalf of the
parents who would have accepted, to replace those five by the Official
Solicitor as next friend was refused by the Court of Appeal in April 1972.
During subsequent negotiations, the original condition was replaced by a
requirement that "a substantial majority" of the parents consented. By
September 1972, a settlement involving the setting up of a  3,250,000 trust
fund had been worked out and was expected to be submitted in October to
the court for approval.
11. Reports concerning the deformed children had appeared regularly in
The Sunday Times since 1967, and in 1968 it had ventured some criticism
of the settlement concluded in that year. There had also been comment on
the children's circumstances in other newspapers and on television. In
particular, in December 1971, the Daily Mail published an article which
prompted complaints from parents that it might jeopardise the settlement
negotiations in hand; the Daily Mail was "warned off" by the AttorneyGeneral
in a formal letter threatening sanctions under the law of contempt
of court, but contempt proceedings were not actually instituted. On 24
September 1972, The Sunday Times carried an article entitled "Our
Thalidomide Children: A Cause for National Shame": this examined the
settlement proposals then under consideration, describing them as
"grotesquely out of proportion to the injuries suffered", criticised various
aspects of English law on the recovery and assessment of damages in
personal injury cases, complained of the delay that had elapsed since the
births and appealed to Distillers to make a more generous offer. The article
contained the following passage:
"... the thalidomide children shame Distillers ... there are times when to insist on the
letter of the law is as exposed to criticism as infringement of another's legal rights.
The figure in the proposed settlement is to be  3.25 million, spread over 10 years.
This does not shine as a beacon against pre-tax profits last year of  64.8 million and
company assets worth  421 million. Without in any way surrendering on negligence,
Distillers could and should think again."
A footnote to the article announced that "in a future article The Sunday
Times [would] trace how the tragedy occurred". On 17 November 1972, the
Divisional Court of the Queen's Bench Division granted the AttorneyGeneraľs
application for an injunction restraining publication of this future
article on the ground that it would constitute contempt of court (see
6
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
paragraphs 17 to 35 below for a summary of the draft article and particulars
of the contempt proceedings).
12. Although the proposed article was accordingly not published, The
Sunday Times throughout October contained a number of features on "the
thalidomide children" and the laws of compensation for personal injuries.
There was also a considerable response from the public, the press and
television. Some radio and television programmes were cancelled after
official warnings about contempt but proceedings were not actually taken
except as regards a television programme, shown on 8 October 1972,
concerning the plight of the children. The Attorney-General claimed that
that programme was calculated to bring pressure on Distillers to pay more.
On 24 November 1972, the Divisional Court decided (Attorney-General v.
London Weekend Television Ltd.) that there had been no contempt because
it was not established that the television company deliberately intended to
influence the pending proceedings and, in the circumstances, a single
showing of the programme did not create "a serious risk" of interference
with the course of justice. The court distinguished the case concerning the
proposed Sunday Times article on the basis that, there, the editor had made
it plain that he was deliberately attempting to persuade Distillers to pay
more.
13. In the House of Commons, the Speaker had repeatedly refused to
allow any debate or questions on the issues raised by the thalidomide
tragedy. However, on 29 November 1972, the matter was extensively
debated in the House which had before it a motion, inter alia, calling on
Distillers to face up to their moral responsibilities and for immediate
legislation to establish a trust fund for the deformed children. Shortly before
the debate, Distillers had increased the value of their proposed trust fund
from  3,250,000 to  5,000,000. Much of the debate was devoted to the
question whether immediate legislation would or would not take pressure
off Distillers and/or the parents and to a discussion of social services for the
children and the disabled in general and of official scrutinising systems for
new drugs. Tributes were paid to the Sunday Times campaign and various
criticisms were made of the law and lawyers. The question of Distillers'
legal, as opposed to moral, responsibility was not discussed, although
references were made to facts - described as "the danger flags flying" - of
which little notice had been taken, and to the absence of a general practice
of tests on the foetus when thalidomide was first marketed. Similar
references appeared in the draft Sunday Times article. At the close of the
debate, the House, "disturbed about the plight of thalidomide children, and
the delay in reaching a settlement", recognised the initiatives taken by the
Government to improve services for the disabled and welcomed the
Governmenťs undertaking to investigate any special cases of need and to
"consider, as soon as the cases are no longer sub judice, whether a trust fund
needs to be established for thalidomide children".
7
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
14. The Parliamentary debate was followed by a further wave of
publications and there was a nationwide campaign in the press and among
the general public directed to bringing pressure on Distillers to make a
better offer. The campaign included a threat to boycott Distillers' other
products and many of their shareholders publicly urged a speedy and
satisfactory settlement. Two articles in the Daily Mail of 8 and 9 December
1972 referred, in particular, to many of the same test and research results as
the enjoined Sunday Times article.
There were also, round about this time, a number of press articles
denying Distillers' legal responsibility, but no further contempt proceedings
were instituted. A public investigation of the causes of the tragedy was
repeatedly demanded but never carried out; in fact, it was finally refused by
the competent Minister in the summer of 1976.
Following the public criticism, the proposed settlement did not proceed
and, in December 1972 and January 1973, Distillers came forward with new
proposals which involved a further increase in the value of the trust fund to
 20,000,000. Negotiations continued. In the meantime, following an appeal
by Times Newspapers Ltd., the Divisional Courťs injunction was
discharged by the Court of Appeal on 16 February 1973, only to be restored
in modified form on 24 August 1973 following the House of Lords' decision
of 18 July allowing a further appeal by the Attorney-General (see
paragraphs 24 to 34 below).
15. On 30 July 1973, a single judge of the Queen's Bench Division
approved in the great majority of the cases the terms of a settlement, after
satisfying himself that they were in the true interests of the minors involved.
Under the settlement:
(a) each plaintiff, provided he withdrew his action, was to receive a lump
sum equal to forty per cent of the amount he would have received had the
action been successful; and
(b) a charitable trust fund was to be set up for the deformed children,
including those covered by the 1968 settlement.
Distillers maintained their denial of negligence on the part of themselves
or their advisers; since not all the parents accepted the proposed settlement,
this issue remained sub judice.
16. On application by the Attorney-General, the injunction against Times
Newspapers Ltd. was discharged on 23 June 1976 (see paragraph 35 below).
Four days later, the contentious article was published. It differed in a
number of respects from the original draft; in particular, it omitted certain
matters based on information which had been received in confidence by the
parents' advisers during the thalidomide litigation. Disclosure of this
information had been forbidden by a further injunction of 31 July 1974 of
which the applicants did not complain before the Commission.
8
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
By 23 June 1976, four of the parents' actions against Distillers remained
outstanding: in one, the pleadings were closed but nothing had been done
since 1974; in two, there had been only delivery of a statement of claim; in
the fourth, only a writ had been issued. Moreover, there was still pending at
that date litigation between Distillers and their insurers which also involved
the issue of negligence: the insurers had contested their liability to pay for
the 1973 settlement on the ground, inter alia, that Distillers had not carried
out adequate tests and research. This action had been set down for trial on 4
October 1976 but was, in fact, settled on 24 September 1976.
Summary of the draft article
17. The unpublished article which was the subject of the injunction
opened with a suggestion that the manner of marketing thalidomide in
Britain left a lot to be desired. It stated that Distillers:
"- relied heavily on the German tests and had not completed full trials of its own
before marketing the drug;
- failed to uncover in its research into medical and scientific literature the fact that a
drug related to thalidomide could cause monster births;
- before marketing the drug did no animal tests to determine the drug's effect on the
foetus;
- accelerated the marketing of the drug for commercial reasons. Were not deflected
by a warning from one of its own staff that thalidomide was far more dangerous than
had been supposed;
- were not deflected by the discovery that thalidomide could damage the nervous
system, in itself a hint that it might damage the foetus;
- continued to advertise the drug as safe for pregnant women up to a month from
when it was withdrawn."
The body of the article described how, after their apparently
disappointing initial ventures into pharmaceutics, Distillers learned in 1956
that the German firm of Chemie Gruenenthal had developed a sedative
considered harmless and unique - thalidomide. The very large market
existing at the time for sedatives was becoming overcrowded and Distillers
thought it necessary to act quickly. Their decision to market the drug was
taken before they had seen technical information, other than the transcript of
a German symposium, and before carrying out independent tests. Indeed,
they seemed to believe that thalidomide would not need elaborate tests.
Distillers put in hand a search of scientific literature but failed to discover
the results of research in 1950 by a Dr. Thiersch showing that a chemical
related to thalidomide could cause monster births; opinions differed as to
whether his work should have been found.
Sales of thalidomide began in Germany in October 1957 and Distillers
were committed under their licensing agreement to commence marketing in
9
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
April 1958. They put the programme for the drug's launch in hand even
though clinical trials were behind. Results of the first British trials were
published in January 1958: it had been found that thalidomide suppressed
the work of the thyroid gland and that its method of action was unknown;
the researcher warned that more tests were needed. Distillers did not rely on
this advice, basing their decision on "flimsy" evidence, namely other trials
in the United Kingdom and assurances concerning the results of research in
Germany. The warning about anti-thyroid effects was particularly relevant
since it was known that drugs affecting the thyroid could affect unborn
children; it was reasonable to argue that Distillers should have delayed
launching the drug pending further tests.
On 14 April 1958, continued the article, thalidomide went on sale in
Britain, advertised as "completely safe". At the end of 1959, Distillers'
pharmacologist discovered that thalidomide in liquid form was highly
poisonous and that an overdose might be lethal, but this report was never
published and the liquid product went on sale in July 1961. In December
1960, it was reported that patients who had taken thalidomide in the tablet
form in which it had first been on sale showed symptoms of peripheral
neuritis; this news had the result of holding up an application to market
thalidomide in the United States of America where it was, in fact, never
sold. Further cases of peripheral neuritis were reported in 1961 but
Distillers' advertising continued to stress the drug's safety.
Early in 1961, children were born in the United Kingdom with
deformities but there was at the time nothing to connect them with
thalidomide. However, between May and October, a doctor in Australia
discovered that the common factor in a number of monster births was that
mothers had taken thalidomide during pregnancy. This was reported to
Chemie Gruenenthal on 24 November who withdrew the drug two days
later following newspaper disclosures. Distillers ended the public sale of
thalidomide immediately afterwards. Tests on animals, published in April
1962, confirmed that thalidomide caused deformities, but sales to hospitals
were not ended until December 1962.
The draft article concluded as follows:
"So the burden of making certain that thalidomide was safe fell squarely on
[Distillers]. How did the company measure up to this heavy responsibility? It can be
argued that:
1. [Distillers] should have found all the scientific literature about drugs related to
thalidomide. It did not.
2. It should have read Thiersch's work on the effects on the nervous system of drugs
related to thalidomide, have suspected the possible action on unborn babies and
therefore have done tests on animals for teratogenic effect. It did not.
10
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
3. It should have done further tests when it discovered that the drug had anti-thyroid
activity and unsuspected toxicity. It did not.
4. It should have had proof before advertising the drug as safe for pregnant women
that this was in fact so. It did not.
For [Distillers] it could be argued that it sincerely believed that thalidomide was free
from any toxicity at the time it was first put on the market in Britain; that peripheral
neuritis did not emerge as a side effect until the drug had been on sale in Britain for
two years; that testing for teratogenic effects was not general in 1958; that if tests had
been done on the usual laboratory animals nothing would have shown because it is
only in the New Zealand white rabbit that thalidomide produces the same effects as in
human beings; and, finally, that in the one clinical report of thalidomide being given to
pregnant women no serious results followed (because thalidomide is dangerous only
during the first 12 weeks of pregnancy).
...
There appears to be no neat set of answers ...".
Domestic law
18. English law relating to contempt of court is described by the report of
the Committee on Contempt of Court (the "Phillimore report", see
paragraph 36 below) as "a means whereby the courts may act to prevent or
punish conduct which tends to obstruct, prejudice or abuse the
administration of justice either in relation to a particular case or generally"
and as existing to protect not the dignity of the judges but "the
administration of justice and `the fundamental supremacy of the law'".
Contempt of court is, with certain exceptions, a criminal offence punishable
by imprisonment or a fine of unlimited duration or amount or by an order to
give security for good behaviour; punishment may be imposed by summary
process without trial by jury and the publication of facts or opinions
constituting a criminal contempt may also be restrained by similar process.
To some extent, contempt of court covers the same ground as various
ordinary criminal offences against the administration of justice, such as
perversion of the course of justice. Contempt of court is a creature of the
common law and covers many forms of conduct. Lord Diplock remarked in
his speech in the House of Lords in the Sunday Times Case:
"There is an abundance of empirical decisions upon particular instances of conduct
which has been held to constitute contempt of court. There is a dearth of rational
explanation or analysis of a general concept of contempt of court which is common to
the cases where it has been found to exist."
The Phillimore report divides contempt of court into the following
categories:
(a) "contempt in the face of the court", for example throwing missiles at
the judge, insulting persons in court, demonstrating in court;
11
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
(b) "contempt out of court", subdivided into:
(i) reprisals against witnesses after the conclusion of proceedings;
(ii) "scandalising the court", for example, abusing a judge qua judge or
attacking his impartiality or integrity;
(iii) disobedience to court orders;
(iv) conduct, whether intentional or not, liable to interfere with the course
of justice in particular proceedings.
The present case concerns the last-mentioned category which includes
contempt in the form of publications, reports or comments on legal
proceedings in progress. The Phillimore report states that there is a lack of a
clear definition of the kind of statement, criticism or comment that will be
held to amount to contempt. It adds that, until the House of Lords in the
Sunday Times Case "formulated a rather different test", the tests of
contempt for publications were all based on the concept of prejudice to, or
improper interference with, the legal process and that the mischief which
the law of contempt is and always has been designed to suppress is the risk
of prejudice to the due administration of justice.
It seems that a publication may constitute contempt of court not only if it
appears after the issue of a writ but also if it appears when proceedings are
"imminent".
19. The Attorney-General has a right, but not an obligation, to bring
before the court any matter which he thinks may amount to contempt and
which he considers should, in the public interest, be so brought. Save in
certain cases, contempt proceedings may also be instituted by private
individuals.
20. It should be noted, in this connection, that a House of Commons rule
prohibits reference in debate to matters that are sub judice. Subject to
certain exceptions, no reference at all, whether prejudicial or not, may be
made to civil litigation once the case has been set down for trial or
otherwise brought before the court; before that time (or after it in the
exceptional cases) such matters may be referred to unless the Chair
considers there to be a real and substantial danger of prejudice to the trial of
the case. It was under this rule that the House held its debate of 29
November 1972 (see paragraph 13 above), a report of which was published.
The domestic contempt proceedings
(a) Introduction
21. Distillers made a formal complaint to the Attorney-General that the
Sunday Times article of 24 September 1972 constituted contempt of court in
view of the litigation still outstanding and, on 27 September, the SolicitorGeneral,
in the absence of the Attorney-General, wrote to the editor of The
Sunday Times to ask him for his observations. The editor, in his reply,
12
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
justified that article and also submitted the draft of the proposed future
article for which he claimed complete factual accuracy. The SolicitorGeneral
enquired whether the draft had been seen by any of the parties to
the litigation, as a consequence of which a copy of the draft was sent by The
Sunday Times to Distillers on 10 October. On the previous day, The Sunday
Times had been advised that the Attorney-General had decided to take no
action in respect of the matter already published in September and October;
Distillers also took no action. On 11 October, the Attorney-Generaľs Office
informed The Sunday Times that, following representations by Distillers,
the Attorney-General had decided to apply to the High Court in order to
obtain a judicial decision on the legality of the publication of the proposed
article. On the following day, he issued a writ against Times Newspapers
Ltd. in which he claimed an injunction "to restrain the defendants ... by
themselves, their servants or agents or otherwise, from publishing or
causing or authorising to be published or printed an article in draft dealing,
inter alia, with the development, distribution and use of the drug
thalidomide, a copy of which article had been supplied to the AttorneyGeneral
by the defendants".
(b) Decision of the Divisional Court
22. The Attorney-Generaľs application was heard by three judges of the
Queen's Bench Division from 7 to 9 November 1972; on 17 November the
court granted the injunction.
In its judgment the court remarked:
"the article does not purport to express any views as to the legal responsibility of
Distillers ... but ... is in many respects critical of Distillers and charges them with
neglect in regard to their own failure to test the product, or their failure to react
sufficiently sharply to warning signs obtained from the tests by others. No one reading
the article could ... fail to gain the impression that the case against Distillers on the
footing of negligence was a substantial one."
The editor of The Sunday Times had indicated that any libel proceedings
following publication would be defended by a plea that the contents of the
article were true and the court approached the article on the footing that it
was factually accurate.
23. The reasoning in the courťs judgment may be summarised as
follows. The objection to unilateral comment, prior to conclusion of the
court hearing, was that it might prevent the due and impartial administration
of justice by affecting and prejudicing the mind of the tribunal itself, by
affecting witnesses who were to be called or by prejudicing the free choice
and conduct of a party to the litigation. It was the third form of prejudice
that was relevant to the present case. If a party was subjected to pressure of
a kind which raised a serious prospect that he would be denied justice
because his freedom of action in the case would be affected, then a
contempt of court had been established. The test of contempt was whether,
13
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
in all the circumstances of the particular case, the words complained of
created a serious risk that the course of justice might be interfered with,
irrespective of the writer's intention or the truth of the writing.
It was not for the court, as the defendants had contended, to balance the
competing interests of the protection of the administration of justice on the
one hand and the right of the public to be informed on the other: comment
raising a serious risk of interference with legal proceedings should be
withheld until the proceedings were terminated. However, even if this were
not so, there was in this case no public interest in immediate disclosure
which could outweigh the public interest in preventing pressure on the
parties to the litigation.
There was no distinction in the present case between persuasion directed
to a legal obligation and persuasion directed to a moral obligation. The
undoubted motive of The Sunday Times was to enlist public opinion to exert
pressure on Distillers and cause them to make a more generous settlement
than might otherwise be the case. There was a deliberate attempt to
influence the settlement of pending proceedings and, having regard to the
power of public opinion, publication of the article would create a serious
risk of interference with Distillers' freedom of action in the litigation and
would be a clear contempt.
(c) Decision of the Court of Appeal
24. An appeal by Times Newspapers Ltd. against the Divisional Courťs
decision was heard by the Court of Appeal from 30 January to 2 February
1973. The court had before it an affidavit by the editor of The Sunday Times
setting out developments in the intervening period both in the case itself and
in public discussion thereof. With the leave of the court, counsel for
Distillers made submissions on the contents of the proposed article, pointing
to errors he said it contained. On 16 February, the Court of Appeal
discharged the injunction. Summaries of the judgments read by the three
members of the court appear below.
25. Lord Denning said that the proposed article:
"... contains a detailed analysis of the evidence against Distillers. It marshals
forcibly the arguments for saying that Distillers did not measure up to their
responsibility. Though, to be fair, it does summarise the arguments which could be
made for Distillers."
After pointing out that the court had no affidavit from Distillers as to the
effect of the proposed article on them and little knowledge of the state of the
litigation and settlement negotiations, Lord Denning stated the law as
follows:
"... when litigation is pending and actively in suit ... no one shall comment on it in
such a way that there is a real and substantial danger of prejudice to the trial of the
14
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
action, as for instance by influencing the judge, the jurors, or the witnesses, or even by
prejudicing mankind in general against a party to the cause ... Even if the person
making the comment honestly believes it to be true, still it is a contempt of court if he
prejudges the truth before it is ascertained in the proceedings ... [Further] none shall ...
bring unfair pressure to bear on one of the parties ... so as to force him to drop his
complaint, or to give up his defence, or to come to a settlement on terms which he
would not otherwise have been prepared to entertain."
"Trial by newspaper", continued Lord Denning, must not be allowed.
However, the public interest in a matter of national concern had to be
balanced against the interest of the parties in a fair trial or settlement; in the
present case the public interest in discussion outweighed the potential
prejudice to a party. The law did not prevent comment when litigation was
dormant and not being actively pursued. Moreover, since the law did not
prevent comment on litigation which had ended or had not started, there was
nothing to prevent comment on the sixty-two cases settled in 1968 or the
one hundred and twenty-three cases in which writs had not been issued.
Even in September 1972, the proposed article would not have amounted to
contempt: it was fair comment on a matter of public interest; it did not
prejudice pending litigation because that litigation had been dormant for
years and still was; and the pressure the article was intended to bring to bear
was legitimate. In addition, it would be discrimination of the worst kind to
continue to enjoin The Sunday Times alone when Parliament and other
newspaper had discussed the matter since November 1972.
26. Lord Justice Phillimore pointed out that anyone could comment
freely on the cases which had been settled or in which no writ had been
issued. Unfair pressure to settle a case might constitute contempt of court,
but here there was no affidavit from Distillers and no evidence that there
was a serious risk of the proposed article's compelling Distillers to settle for
more or that the pressure was unfair. The position would have been different
if there had been a real intention to bring the remaining cases to court since,
in that event, an article designed to prejudice the public against a party or to
put pressure on him so as to force a settlement could not have been
countenanced. Moreover, since November 1972, the House of Commons
had debated the matter and other newspapers, especially the Daily Mail, had
commented; it would therefore be unreal to continue injunction.
27. After indicating that he agreed with Lord Denning's judgment, Lord
Justice Scarman pointed out that no one expected a trial; the writs were a
move towards obtaining a settlement and the mere issue of a writ could not
stifle all comment. Since there was no evidence of litigation actively in suit,
it was unrealistic to treat the proposed article as constituting a real or
substantial prejudice to the course of justice. Moreover, the public interest in
freedom of speech on a matter of great public moment had to be considered.
Finally, even if the Divisional Court had been right, the state of public
opinion following the House of Commons debate was such that the
injunction should now be discharged.
15
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
(d) Decision of the House of Lords
28. Following the Court of Appeaľs decision, The Sunday Times
refrained from publishing the proposed article so as to enable the AttorneyGeneral
to appeal. The Court of Appeal refused him leave to appeal but this
was granted by the House of Lords on 1 March 1973. The hearing before
the House of Lords was held in May 1973. On 18 July 1973, the House gave
judgment unanimously allowing the appeal and subsequently directed the
Divisional Court to grant an injunction in the terms set out in paragraph 34
below. Summaries of the speeches read by the five Law Lords appear below.
29. Lord Reid said that the House must try to remove the uncertainty
which was the main objection to the present law. The law of contempt had
to be founded entirely on public policy: it was not there to protect the rights
of parties to a litigation but to prevent interference with the administration
of justice and should be limited to what was reasonably necessary for the
purpose. Freedom of speech should not be limited more than was necessary
but it could not be allowed where there would be real prejudice to the
administration of justice.
Lord Reid turned first to the question of comment on pending
proceedings which was likely to bring pressure to bear upon one of the
litigants. Whilst comment likely to affect the minds of witnesses and of the
tribunal had to be stopped for otherwise the trial might well be unfair, the
fact that a party refrained from seeking to enforce his full legal rights in no
way prejudiced a fair trial, whether the decision was or was not influenced
by some third party. Accordingly, where the only matter to be considered
was pressure put on a litigant, fair and temperate criticism or urging him to
forgo his legal rights was legitimate and admissible; thus, the article of 24
September 1972 did not constitute contempt. Publication in 1972 of the
proposed further article, which consisted "in the main of detailed argument
and evidence intended to show that Distillers did not exercise due care",
would not have added much to the pressure already on Distillers.
On this basis, Lord Reid could agree with the decision of the Court of
Appeal, though for different reasons. However, he then pointed out:
"The question whether Distillers were negligent has been frequently referred to but,
so far as I am aware, there has been no attempt to assess the evidence. If this material
were released now, it appears to me to be almost inevitable that detailed answers
would be published and there would be expressed various public prejudgments of this
issue. That I would regard as very much against the public interest."
After noting that there was a strong and general feeling that trial by
newspaper should be prevented, Lord Reid continued:
"I think that anything in the nature of prejudgment of a case or of specific issues in
it is objectionable, not only because of its possible effect on that particular case but
also because of its side effects which may be far-reaching. Responsible `mass media'
will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced
16
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
attempts to influence the public. If people are led to think that it is easy to find the
truth, disrespect for the processes of the law could follow, and, if mass media are
allowed to judge, unpopular people and unpopular causes will fare very badly. Most
cases of prejudging of issues fall within the existing authorities on contempt. I do not
think that the freedom of the press would suffer, and I think that the law would be
clearer and easier to apply in practice if it is made a general rule that it is not
permissible to prejudge issues in pending cases."
The Court of Appeal had wrongly described the actions as "dormant",
since settlement negotiations were in hand and improper pressure on a
litigant to settle could constitute contempt. As for the Court of Appeaľs
balancing of competing interest, Lord Reid said:
"... contempt of court has nothing to do with the private interest of litigants. I have
already indicated the way in which I think that a balance must be struck between the
public interest in freedom of speech and the public interest in protecting the
administration of justice from interference. I do not see why there should be any
difference in principle between a case which is thought to have news value and one
which is not. Protection of the administration of justice is equally important whether
or not the case involves important general issues."
Lord Reid concluded that publication of the article should be postponed
for the time being in the light of the circumstances then prevailing; however,
if things dragged on indefinitely, there would have to be a reassessment of
the public interest in a unique situation.
30. For Lord Morris of Borth-y-Gest, the law of contempt was designed
to protect the authority of the courts and to prevent unjustifiable interference
with recourse to them. The public interest in free speech had to be put in the
balance and no limitations should be imposed beyond those which were
absolutely necessary, but
"this does not mean that if some conduct ought to be stigmatised as being contempt
of court it could receive absolution and be regarded as legitimate because it had been
inspired by a desire to bring about a relief of some distress that was a matter of public
sympathy and concern. There can be no such thing as a justifiable contempt of court."
A court would only find a contempt if the risk of prejudice were serious,
real or substantial. Not only had there to be no influencing of the court or of
witnesses, but it was unseemly that there should be public advocacy in
favour of one side in a cause awaiting determination by the courts. Lord
Morris stressed that there should be no "trial by newspaper", remarking that:
"... the courts ... owe it to the parties to protect them either from the prejudices of
prejudgment or from the necessity of having themselves to participate in the flurries of
pre-trial publicity."
The actions against Distillers, he continued, were not "dormant" just
because the parties preferred a settlement to a trial. Whilst there would have
been no objection in 1972 to a comment on the amounts paid under the
1968 settlement or on the general principles of law involved or to a
temperate moral appeal to Distillers, the proposed article went further. Its
17
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
avowed object was to bring public pressure on Distillers to pay more.
Negligence was one of the issues arising, and the draft article, though
asserting no conclusions, showed that there was a considerable case against
Distillers. The time had not yet arrived to discharge the injunction.
31. Lord Diplock said that contempt of court was punishable because it
undermined the confidence of the parties and of the public in the due
administration of justice. The due administration of justice required that all
citizens should have unhindered access to the courts; that they should be
able to rely on an unbiased decision based only on facts proved in
accordance with the rules of evidence; that, once a case was submitted to a
court, they should be able to rely upon there being no usurpation by any
other person, for example in the form of "trial by newspaper", of the
function of the court. Conduct calculated to prejudice any of these
requirements or to undermine public confidence that they would be
observed was contempt of court. Lord Diplock stated that:
"... contempt of court in relation to a civil action is not restricted to conduct ...
calculated ... to prejudice the fair trial of that action by influencing ... the tribunal ... or
witnesses; it extends also to conduct that is calculated to inhibit suitors generally from
availing themselves of their constitutional right to have their legal rights and
obligations ascertained and enforced in courts of law, by holding up any suitor to
public obloquy for doing so or by exposing him to public and prejudicial discussion of
the merits or the facts of his case before they have been determined by the court or the
action has been otherwise disposed of in due course of law."
The proposed Sunday Times article, Lord Diplock considered, fell into
this latter category since it discussed prejudicially the facts and merits of
Distillers' defence to the charge of negligence before the actions had been
determined by a court or settled. The actions could not be ignored as
"dormant", as the same protection had to apply to settlement negotiations as
to the actual trial. Subsequent events did not justify dissolution of the
injunction although, "as [was] conceded", the wording called for some
amendment. The seriousness of the risk of interference with the due
administration of justice was relevant only to the question whether the court
should inflict punishment: once there was a real risk, there was at least
technical contempt.
The passage quoted at paragraph 11 above from the article of 24
September 1972 was also, thought Lord Diplock, a contempt though for a
different reason, namely that it held Distillers up to public obloquy for
relying on a defence available to them under the law; however, those parts
of the September article that dealt with general principles of law were
unobjectionable since, if discussion of such matters of general interest had
the indirect effect of bringing pressure on a litigant, it had to be borne
because of the greater public interest in upholding freedom of discussion on
matters of public concern.
18
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
32. Lord Simon of Glaisdale agreed with Lord Diplock's statement of the
law and with his views concerning the above-mentioned passage in the
September article. He saw the proposed further article as a detailed
discussion of one of the crucial issues in the actions and as designed to
bring moral pressure on Distillers to settle on better terms. The law of
contempt was the means by which the law vindicated the public interest in
the due administration of justice. Most civil actions were settled and
interference with settlement negotiations was no less contempt than
interference with a procedural situation in the strictly forensic sense. The
due course of justice included negotiation towards a settlement on the basis
of the ordained law and the Court of Appeal had been wrong in saying that
the article would not be contempt because the litigation was dormant. Even
private pressure on a litigant was generally impermissible and could be
justified only within narrow limits. The law had to hold in balance two
public interests - in freedom of discussion and in the due administration of
justice - but would be too uncertain if the balance were to be struck anew in
each case. The law had to lay down some general guidelines; as regards
particular litigation, the paramount public interest pendente lite was that the
legal proceedings should progress without interference. An exception was
that public discussion of a matter of general interest which had already
started before litigation began did not have to stop if it was not intended to
prejudice the litigation.
33. Lord Cross of Chelsea stated that "contempt of court" meant an
interference with the administration of justice. The rules of contempt should
not inhibit freedom of speech more than was reasonably necessary. The
proposed article examined the question whether Distillers had been
negligent and any "prejudging" of issues of fact or law in pending civil or
criminal proceedings was in principle such an interference. He continued:
"A publication prejudging an issue in pending litigation which is itself innocuous
enough may provoke replies which are far from innocuous but which, as they are
replies, it would seem unfair to restrain ... An absolute rule - though it may seem to be
unreasonable if one looks only to the particular case - is necessary in order to prevent
a gradual slide towards trial by newspaper or television."
This rule, added Lord Cross, applied to the outcome of settlement
negotiations as much as to the result of the actual trial.
Times Newspapers Ltd. had argued that there should be an exception to
this rule when matters of great public concern were involved; however, the
House was only concerned with discussion of the issue whether Distillers
had been negligent and discussion of the wider issues, such as the scope of
producers' liability and the assessment of damages, was not inhibited.
Reliance had also been placed by the publisher on the lapse of time since the
births and the absence of any public inquiry; however, neither side was to
blame for the delay, the Court of Appeal had wrongly described the actions
as "dormant" since settlement negotiations were being actively pursued and
19
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
the absence of a public inquiry did not justify allowing the press to conduct
an inquiry while proceedings were in progress. The position had not altered
since the Divisional Court hearing: the House of Commons debate had
concentrated on the moral issues and, although Distillers had come forward
with an offer which made an overall settlement likely - so that publication
of the article could not now harm them -, it was not certain that no claims
would come to court. Accordingly, the injunction should be restored but
with liberty to apply for its discharge whenever Times Newspapers Ltd.
considered that they could persuade a court that its continuation was not
warranted in the light of the facts then existing.
The article of 24 September 1972 was not a contempt: prejudging an
issue was contempt of court but a fairly and accurately expressed comment
that might bring even great pressure on a litigant was not.
34. On 25 July 1973, the House of Lords ordered that the cause be
remitted to the Divisional Court with a direction to grant the following
injunction:
"That ... Times Newspapers Ltd., by themselves, their servants, agents or otherwise,
be restrained from publishing, or causing or authorising or procuring to be published
or printed, any article or matter which prejudges the issues of negligence, breach of
contract or breach of duty, or deals with the evidence relating to any of the said issues
arising in any actions pending or imminent against Distillers ... in respect of the
development, distribution or use of the drug `thalidomide'."
The defendants were granted liberty to apply to the Divisional Court for
discharge of the injunction.
The Divisional Court implemented the above direction on 24 August
1973.
(e) Decision of the Divisional Court discharging the injunction
35. On 23 June 1976, the Divisional Court heard an application by the
Attorney-General for the discharge of the injunction. It was said on behalf
of the Attorney-General that the need for the injunction no longer arose:
most of the claims against Distillers had been settled and there were only
four extant actions which could by then have been brought before the courts
if they had been pursued diligently. As there was a conflicting public
interest in The Sunday Times being allowed to publish "at the earliest
possible date", the Attorney-General submitted the matter to the court as one
where the public interest no longer required the restraint. The court,
considering that the possibility of pressure on Distillers had completely
evaporated, granted the application.
Proposals for reform of the law of contempt of court
36. One particular aspect of the law had been considered by the
Interdepartmental Committee on the Law of Contempt as it affects Tribunals
of Inquiry, which reported in 1969. On 8 June 1971, the Lord Chancellor
20
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
and the Lord Advocate appointed a committee under the chairmanship of
Lord Justice Phillimore to consider whether any changes were required in
the law of contempt as a whole. The Phillimore report was presented to
Parliament in December 1974, having been delayed by the Sunday Times
contempt litigation. The report discussed the various judgments in that case
and described it as well illustrating the uncertainty of the present state of the
law regarding publications dealing with legal proceedings. Whilst it might
be that the right to issue such publications had on occasion to be overridden
by the public interest in the administration of justice, the committee was of
the opinion that the balance had moved too far against the freedom of the
press. It therefore made various proposals for reform, both to redress the
balance and in order to achieve greater certainty in the law. In particular, it
doubted whether a "prejudgment" test such as that proposed in the House of
Lords was the right one, considering that it went both too far and not far
enough. The Committee preferred the following test, to be applied in the
light of the circumstances existing at the time of publication: "whether the
publication complained of creates a risk that the course of justice will be
seriously impeded or prejudiced." One member of the committee remarked
that, despite the suppression of the Sunday Times article, the campaign of
protest and pressure over the talidomide tragedy made a mockery of the law
of contempt.
The committee concluded, in particular, that the law of contempt was
required as a means of maintaining the rights of the citizen to a fair and
unimpeded system of justice and protecting the orderly administration of the
law; however, the operation of that law should be confined to circumstances
where the offending act was not within the definition of any other criminal
offence and where the achievement of that law's objectives required a
summary procedure. The law as it stood contained uncertainties impeding
and restricting reasonable freedom of speech and should be amended and
clarified so as to allow as much freedom of speech as was consistent with
the achievement of the above-mentioned objectives.
The committee recommended, inter alia, that a publication should be
subject to the law of contempt if it created a risk of serious prejudice
(whether intentionally or not) but that this strict liability should only apply:
(a) if the publication created a risk that the course of justice would be
seriously impeded or prejudiced;
(b) when, in the case of civil proceedings in England and Wales, the case
had been set down for trial;
(c) subject to the availability of a defence that the publication formed
part of a discussion of matters of general public interest and only
incidentally or unintentionally created a risk of serious prejudice to
particular proceedings.
It was also recommended that bringing influence or pressure to bear upon
a party to proceedings should not be held to be a contempt unless it
21
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
amounted to intimidation or unlawful threats to his person, property or
reputation.
37. The recommendations contained in the Phillimore report have not yet
been implemented and the Government have made no proposals for
legislation. However, in March 1978, they issued a Green Paper, intended to
provide a basis for Parliamentary and public discussion, and invited
comments which would be taken into account in a decision on policy. The
Green Paper, which draws no conclusions, rehearses the recommendations
of the Phillimore Committee and sets out arguments for and against certain
of them, for example, those relating to the provision of a defence of
"discussion of matters of general public interest" and to bringing influence
or pressure to bear upon a party. The document does not call in question the
suggestion that the "prejudgment" test referred to in the House of Lords
should be reconsidered.
PROCEEDINGS BEFORE THE COMMISSION
38. In their application, lodged with the Commission on 19 January
1974, the applicants claimed that the injunction, issued by the High Court
and upheld by the House of Lords, to restrain them from publishing an
article in The Sunday Times dealing with thalidomide children and the
settlement of their compensation claims in the United Kingdom constituted
a breach of Article 10 (art. 10) of the Convention. They further alleged that
the principles upon which the decision of the House of Lords was founded
amounted to a violation of Article 10 (art. 10) and asked the Commission to
direct or, alternatively, to request the Government to introduce legislation
overruling the decision of the House of Lords and bringing the law of
contempt of court into line with the Convention.
39. In its decision of 21 March 1975, the Commission, after describing
the question before it as "whether the rules of contempt of court as applied
in the decision of the House of Lords granting the injunction are a ground
justifying the restriction under Article 10 para. 2 (art. 10-2)", declared
admissible and accepted the application.
4O. In their submissions on the merits, the applicants made the following
additional allegations:
- that there had been discrimination contrary to Article 14 (art. 14) of the
Convention by reason of the fact that similar press publications had not
been restrained and by reason of the difference between the rules applicable
in Parliament in relation to comment on pending litigation and the rules of
contempt of court applied to the press;
22
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
- that, contrary to Article 18 (art. 18) of the Convention, the principles of
contempt of court, which should be limited to the maintenance of the
independence and impartiality of the judiciary, had in the applicants' case in
fact been applied for the protection of a litigant and in such a way as to
prevent the applicants from exercising their duties as journalists.
41. In its report of 18 May 1977, the Commission, after deciding that it
could and must deal with the applicants additional allegations, expressed the
opinion:
- by eight votes to five, that the restriction imposed on the applicants'
right to freedom of expression was in breach of Article 10 (art. 10) of the
Convention;
- unanimously, that there had been no breach of Articles 14 and 18 read
in conjunction with Article 10 (art. 14+10, art. 18+10).
The report contains a joint dissenting opinion by five members of the
Commission.
AS TO THE LAW
I. ON ARTICLE 10 (art. 10)
42. The applicants claim to be the victims of a violation of Article 10
(art. 10) of the Convention which provides:
"1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article (art. 10) shall
not prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
The applicants allege that this violation arises by reason, firstly, of the
injunction granted by the English courts and, secondly, of the continuing
restraints to which they are subjected as a result of the over-breadth and lack
of precision of the law of contempt of court.
The Commission, in its report, expresses the opinion that there has been
a violation on the first ground. As regards the second ground, the Principal
Delegate submitted also, at the hearing on 24 April 1978, that the injunction
23
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
was not the only matter which the Court had to consider under Article 10
(art. 10) and that, despite the judgment of the House of Lords and indeed
because of its ambiguities, the applicants and other media were continuing
victims of the uncertainty of the law of contempt of court.
The Government maintain that there has been no breach of Article 10
(art. 10).
43. With respect to the second ground, the Court recalls that "its
jurisdiction in contentious matters is limited to applications which have first
of all been lodged with and accepted by the Commission": "The
Commission's decision declaring an application admissible determines the
object of the case brought before the Court; it is only within the framework
so traced that the Court, once a case is duly referred to it, may take
cognisance of all questions of fact or of law arising in the course of the
proceedings" (judgment of 18 January 1978 in the case of Ireland v. the
United Kingdom, Series A no. 25, p. 63, para. 157). In the present case, the
Commission, in its decision of 21 March 1975 on the admissibility of the
application, specified that the question before it was "whether the rules of
contempt of court as applied in the decision of the House of Lords granting
the injunction are a ground justifying the restriction under Article 10 (2)
(art. 10-2)". The Commission's examination of the merits of the case was
limited to that very question.
The Court thus concludes that it has to examine only whether there has
been a violation of the Convention by reason of the judgment of the House
of Lords.
44. Originally, the injunction in question was granted by the Divisional
Court and concerned only the draft Sunday Times article (see paragraph 21
above). It was discharged by the Court of Appeal (see paragraph 24 above)
but the House of Lords restored it and considerably widened its scope by
directing the Divisional Court to order
"That ... Times Newspapers Ltd., by themselves, their servants, agents or otherwise,
be restrained from publishing, or causing or authorising or procuring to be published
or printed, any article or matter which prejudges the issues of negligence, breach of
contract or breach of duty, or deals with the evidence relating to any of the said issues
arising in any actions pending or imminent against Distillers ... in respect of the
development, distribution or use of the drug `thalidomide'."
45. It is clear that there was an "interference by public authority" in the
exercise of the applicants' freedom of expression, which is guaranteed by
paragraph 1 of Article 10 (art. 10-1). Such an interference entails a
"violation" of Article 10 (art. 10) if it does not fall within one of the
exceptions provided for in paragraph 2 (art. 10-2) (Handyside judgment of 7
December 1976, Series A no. 24, p. 21, para. 43). The Court therefore has to
examine in turn whether the interference in the present case was "prescribed
by law", whether it had an aim or aims that is or are legitimate under Article
24
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
10 (2) (art. 10-2) and whether it was "necessary in a democratic society" for
the aforesaid aim or aims.
A. Was the interference "prescribed by law"?
46. The applicants argue, inter alia, that the law of contempt of court,
both before and after the decision of the House of Lords, was so vague and
uncertain and the principles enunciated by that decision so novel that the
restraint imposed cannot be regarded as "prescribed by law". The
Government maintain that it suffices, in this context, that the restraint was in
accordance with the law; they plead, in the alternative, that on the facts of
the case the restraint was at least "roughly foreseeable". This latter test had
been referred to by the Commission in its report, although there it merely
proceeded on the assumption that the principles applied by the House of
Lords were "prescribed by law". However, at the hearing on 25 April 1978,
the Commission's Principal Delegate added that, in view of the uncertainties
of the law, the restraint was not "prescribed by law", at least when the
injunction was first granted in 1972.
47. The Court observes that the word "law" in the expression "prescribed
by law" covers not only statute but also unwritten law. Accordingly, the
Court does not attach importance here to the fact that contempt of court is a
creature of the common law and not of legislation. It would clearly be
contrary to the intention of the drafters of the Convention to hold that a
restriction imposed by virtue of the common law is not "prescribed by law"
on the sole ground that it is not enunciated in legislation: this would deprive
a common-law State which is Party to the Convention of the protection of
Article 10 (2) (art. 10-2) and strike at the very roots of that State's legal
system.
In fact, the applicants do not argue that the expression "prescribed by
law" necessitates legislation in every case; their submission is that
legislation is required only if - as in the present case ­ the common-law
rules are so uncertain that they do not satisfy what the applicants maintain is
the concept enshrined in that expression, namely, the principle of legal
certainty.
48. The expression "prescribed by law" appears in paragraph 2 of
Articles 9, 10 and 11 (art. 9-2, art. 10-2, art. 11-2) of the Convention, the
equivalent in the French text being in each case "prévues par la loi".
However, when the same French expression appears in Article 8 (2) (art. 8-
2) of the Convention, in Article 1 of Protocol No. 1 (P1-1) and in Article 2
of Protocol No. 4 (P4-2), the English text as "in accordance with the law",
"provided for by law" and "in accordance with law", respectively. Thus
confronted with versions of a law-making treaty which are equally authentic
but not exactly the same, the Court must interpret them in a way that
reconciles them as far as possible and is most appropriate in order to realise
25
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
the aim and achieve the object of the treaty (see the Wemhoff judgment of
27 June 1968, Series A no. 7, p. 23, para. 8, and Article 33 para. 4 of the
Vienna Convention of 23 May 1969 on the Law of Treaties).
49. In the Courťs opinion, the following are two of the requirements that
flow from the expression "prescribed by law". Firstly, the law must be
adequately accessible: the citizen must be able to have an indication that is
adequate in the circumstances of the legal rules applicable to a given case.
Secondly, a norm cannot be regarded as a "law" unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct: he must be
able - if need be with appropriate advice - to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given action
may entail. Those consequences need not be foreseeable with absolute
certainty: experience shows this to be unattainable. Again, whilst certainty
is highly desirable, it may bring in its train excessive rigidity and the law
must be able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser extent, are
vague and whose interpretation and application are questions of practice.
50. In the present case, the question whether these requirements of
accessibility and foresee ability were satisfied is complicated by the fact that
different principles were relied on by the various Law Lords concerned. The
Divisional Court had applied the principle that a deliberate attempt to
influence the settlement of pending proceedings by bringing public pressure
to bear on a party constitutes comtempt of court (the "pressure principle";
see paragraph 23 above). Certain members of the House of Lords also
alluded to this principle, whereas others preferred the principle that it is
contempt of court to publish material which prejudges, or is likely to cause
public prejudgment of, the issues raised in pending litigation (the
"prejudgment principle"; see paragraphs 29 to 33 above).
51. The applicants do not claim to have been without an indication that
was adequate in the circumstances of the "pressure principle". Indeed, the
existence of this principle had been recognised by counsel for Times
Newspapers Ltd. who is reported as saying before the Divisional Court:
"Even if it applies pressure to a party, the article is not contempt at all
because [the higher public interest] overcomes any question of wrongdoing.
Alternatively, if the article is prima facie contempt, the higher public
interest provides a defence against what would otherwise be contempt."
Again, Lord Justice Phillimore in the Court of Appeal referred to "the mass
of authority ... showing that an attempt to stir up public feeling against a
party is a serious contempt".
The Court also considers that there can be no doubt that the "pressure
principle" was formulated with sufficient precision to enable the applicants
to foresee to the appropriate degree the consequences which publication of
the draft article might entail. In Vine Products Ltd. v. Green (1966), Mr.
26
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
Justice Buckley had formulated the law in this way: "It is a contempt of this
court for any newspaper to comment on pending legal proceedings in any
way which is likely to prejudice the fair trial of the action. That may arise in
various ways. It may be that the comment is one which is likely in some
way or other to bring pressure to bear upon one or other of the parties to the
action, so as to prevent that party from prosecuting or from defending the
action, or encourage that party to submit to terms of compromise which he
otherwise might not have been prepared to entertain, or influence him in
some other way in his conduct in the action, which he ought to be free to
prosecute or to defend, as he is advised, without being subject to such
pressure."
52. The applicants contend, on the other hand, that the prejudgment
principle was novel and that they therefore could not have had an adequate
indication of its existence. Support for this view is to be found in several
authorities cited by the applicants, including the Phillimore report, which
stated that the House of Lords "formulated a rather different test" (see
paragraph 18 above). Nevertheless, the Court has also noted the following:
- in the applicants' memorial, it is submitted (paragraph 2.54): "the
`prejudgment principle' as applied by the House of Lords to the facts of the
present case has never before constituted the `ratio' of an English judicial
decision in a comparable case" (emphasis added);
- in 1969, the Interdepartmental Committee on the Law of Contempt as it
affects Tribunals of Inquiry (see paragraph 36 above) stated in paragraph 26
of its report: "There is no reported case or anyone being found guilty of
contempt of court in respect of comment made about the subject matter of a
trial before a judge alone ... There are however dicta which support the view
that such comment may amount to comtempt";
- the third edition (current in 1972) of Halsbury's Laws of England (vol.
8, pp. 7 et seq., paragraphs 11-13) contains the following passages which
are accompanied by references to previous case-law: "... writings ...
prejudicing the public for or against a party are contempts ... there [is
nothing] of more pernicious consequence than to prejudice the minds of the
public against persons concerned as parties in causes before the cause is
finally heard ... It is a contempt to publish an article in a newspaper
commenting on the proceedings in a pending ... civil action ... In such cases
the mischievous tendency of a trial by the newspapers when a trial by one of
the regular tribunals of the country is going on is to be considered ... On the
other hand, the summary jurisdiction [to punish contempt] ought only to be
exercised when it is probable that the publication will substantially interfere
with a fair trial."
As regards the formulation of the "prejudgment principle", the Court
notes that reference was made in the House of Lords to various authorities
and, in particular, to Hunt v. Clarke (1889), where Lord Cotton had stated
the law in this way: "If any one discusses in a paper the rights of a case or
27
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
the evidence to be given before the case comes on, that, in my opinion,
would be a very serious attempt to interfere with the proper administration
of justice. It is not necessary that the court should come to the conclusion
that a judge or jury will be prejudiced, but if it is calculated to prejudice the
proper trial of a cause, that is a contempt, and would be met with the
necessary punishment in order to restrain such conduct." Moreover, the
editor of The Sunday Times said in his affidavit filed in the Divisional Court
proceedings: "... I was given legal advice that the [proposed] article ... was
in a category different from that of the articles published hitherto in that in
addition to presenting information which strengthened the moral argument
for a fairer settlement it included evidence which related to the issue of
liability in the pending thalidomide proceedings."
To sum up, the Court does not consider that the applicants were without
an indication that was adequate in the circumstances of the existence of the
"prejudgment principle". Even if the Court does have certain doubts
concerning the precision with which that principle was formulated at the
relevant time, it considers that the applicants were able to foresee, to a
degree that was reasonable in the circumstances, a risk that publication of
the draft article might fall foul of the principle.
53. The interference with the applicants' freedom of expression was thus
"prescribed by law" within the meaning of Article 10 (2) (art. 10-2).
B. Did the interference have aims that are legitimate under Article 10
para. 2 (art. 10-2)?
54. In the view of the applicants, the Government and the minority of the
Commission, the law of contempt of court serves the purpose of
safeguarding not only the impartiality and authority of the judiciary but also
the rights and interests of litigants.
The majority of the Commission, on the other hand, whilst accepting that
the law of contempt has the general aim of securing the fair administration
of justice and that it thereby seeks to achieve purposes similar to those
envisaged in Article 10 (2) (art. 10-2) where it speaks of maintaining the
authority and impartiality of the judiciary, considered that it was not called
upon to examine separately whether that law has the further purpose of
protecting the rights of others.
55. The Court first emphasises that the expression "authority and
impartiality of the judiciary" has to be understood "within the meaning of
the Convention" (see, mutatis mutandis, the König judgment of 28 June
1978, Series A no. 27, pp. 29-30, para. 88). For this purpose, account must
be taken of the central position occupied in this context by Article 6 (art. 6),
which reflects the fundamental principle of the rule of law (see, for
28
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
example, the Golder judgment of 21 February 1975, Series A no. 18, p. 17,
para. 34).
The term "judiciary" ("pouvoir judiciaire") comprises the machinery of
justice or the judicial branch of government as well as the judges in their
official capacity. The phrase "authority of the judiciary" includes, in
particular, the notion that the courts are, and are accepted by the public at
large as being, the proper forum for the ascertainment of legal rights and
obligations and the settlement of disputes relative thereto; further, that the
public at large have respect for and confidence in the courts' capacity to
fulfil that function.
It suffices, in this context, to adopt the description of the general
purposes of the law of contempt given by the Phillimore report. As can be
seen from paragraph 18 above, the majority of the categories of conduct
covered by the law of contempt relate either to the position of the judges or
to the functioning of the courts and of the machinery of justice:
"maintaining the authority and impartiality of the judiciary" is therefore one
purpose of that law.
56. In the present case, the Court shares the view of the majority of the
Commission that, in so far as the law of contempt may serve to protect the
rights of litigants, this purpose is already included in the phrase
"maintaining the authority and impartiality of the judiciary": the rights so
protected are the rights of individuals in their capacity as litigants, that is as
persons involved in the machinery of justice, and the authority of that
machinery will not be maintained unless protection is afforded to all those
involved in or having recourse to it. It is therefore not necessary to consider
as a separate issue whether the law of contempt has the further purpose of
safeguarding "the rights of others".
57. It remains to be examined whether the aim of the interference with
the applicants' freedom of expression was the maintenance of the authority
and impartiality of the judiciary.
None of the Law Lords concerned based his decision on the ground that
the proposed article might have an influence on the "impartiality" of the
judiciary. This ground was also not pleaded before the Court and can be left
out of account.
The reasons why the draft article was regarded as objectionable by the
House of Lords (see paragraphs 29 to 33 above) may be briefly summarised
as follows:
- by "prejudging" the issue of negligence, it would have led to disrespect
for the processes of the law or interfered with the administration of justice;
- it was of a kind that would expose Distillers to public and prejudicial
discussion of the merits of their case, such exposure being objectionable as
it inhibits suitors generally from having recourse to the courts;
29
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
- it would subject Distillers to pressure and to the prejudices of
prejudgment of the issues in the litigation, and the law of contempt was
designed to prevent interference with recourse to the courts;
- prejudgment by the press would have led inevitably in this case to
replies by the parties, thereby creating the danger of a "trial by newspaper"
incompatible with the proper administration of justice;
- the courts owe it to the parties to protect them from the prejudices of
prejudgment which involves their having to participate in the flurries of pretrial
publicity.
The Court regards all these various reasons as falling within the aim of
maintaining the "authority ... of the judiciary" as interpreted by the Court in
the second sub-paragraph of paragraph 55 above.
Accordingly, the interference with the applicants' freedom of expression
had an aim that is legitimate under Article 10 (2) (art. 10-2).
C. Was the interference "necessary in a democratic society" for
maintaining the authority of the judiciary?
58. The applicants submit and the majority of the Commission is of the
opinion that the said interference was not "necessary" within the meaning of
Article 10 (2) (art. 10-2). The Government contend that the minority of the
Commission was correct in reaching a contrary conclusion and rely, in
particular, on the margin of appreciation enjoyed by the House of Lords in
the matter.
59. The Court has already had the occasion in its above-mentioned
Handyside judgment to state its understanding of the phrase "necessary in a
democratic society", the nature of its functions in the examination of issues
turning on that phrase and the manner in which it will perform those
functions.
The Court has noted that, whilst the adjective "necessary", within the
meaning of Article 10 (2) (art. 10-2), is not synonymous with
"indispensable", neither has it the flexibility of such expressions as
"admissible", "ordinary", "useful", "reasonable" or "desirable" and that it
implies the existence of a "pressing social need" (p. 22, para. 48).
In the second place, the Court has underlined that the initial
responsibility for securing the rights and freedoms enshrined in the
Convention lies with the individual Contracting States. Accordingly,
"Article 10 (2) (art. 10-2) leaves to the Contracting States a margin of
appreciation. This margin is given both to the domestic legislator ... and to
30
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
the bodies, judicial amongst others that are called upon to interpret and
apply the laws in force" (p. 22, para. 48).
"Nevertheless, Article 10 (2) (art. 10-2) does not give the Contracting States an
unlimited power of appreciation": "The Court ... is empowered to give the final ruling
on whether a `restriction' ... is reconcilable with freedom of expression as protected by
Article 10 (art. 10). The domestic margin of appreciation thus goes hand in hand with
a European supervision" which "covers not only the basic legislation but also the
decision applying it, even one given by an independent court" (ibid., p. 23, para. 49).
The Court has deduced from a combination of these principles that "it is
in no way [its] task to take the place of the competent national courts but
rather to review under Article 10 (art. 10) the decisions they delivered in the
exercise of their power of appreciation" (ibid., p. 23, para. 50).
This does not mean that the Courťs supervision is limited to ascertaining
whether a respondent State exercised its discretion reasonably, carefully and
in good faith. Even a Contracting State so acting remains subject to the
Courťs control as regards the compatibility of its conduct with the
engagements it has undertaken under the Convention. The Court still does
not subscribe to the contrary view which, in essence, was advanced by the
Government and the majority of the Commission in the Handyside case (pp.
21-22, para. 47).
Again, the scope of the domestic power of appreciation is not identical as
regards each of the aims listed in Article 10 (2) (art. 10-2). The Handyside
case concerned the "protection of morals". The view taken by the
Contracting States of the "requirements of morals", observed the Court,
"varies from time to time and from place to place, especially in our era", and
"State authorities are in principle in a better position than the international
judge to give an opinion on the exact content of these requirements" (p. 22,
para. 48). Precisely the same cannot be said of the far more objective notion
of the "authority" of the judiciary. The domestic law and practice of the
Contracting States reveal a fairly substantial measure of common ground in
this area. This is reflected in a number of provisions of the Convention,
including Article 6 (art. 6), which have no equivalent as far as "morals" are
concerned. Accordingly, here a more extensive European supervision
corresponds to a less discretionary power of appreciation.
In the different, but to a certain extent comparable, contexts of Articles 5
(3) and 6 (1) (art. 5-3, art. 6-1), the Court has on occasion reached
conclusions different from those of the national courts on matters in respect
of which the latter were also competent and qualified to make the initial
assessment (Neumeister judgment of 27 June 1968, Series A no. 8, pp. 9-15
and 38-40; Stögmüller judgment of 10 November 1969, Series A no. 9, pp.
11-24, 39 and 43-44; Ringeisen judgment of 16 July 1971, Series A no. 13,
pp. 24-34 and 42-44; König judgment of 28 June 1978, Series A no. 27, pp.
16 in fine, 22, 23-24 and 33-40).
31
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
60. Both the minority of the Commission and the Government attach
importance to the fact that the institution of contempt of court is peculiar to
common-law countries and suggest that the concluding words of Article 10
(2) (art. 10-2) were designed to cover this institution which has no
equivalent in many other member States of the Council of Europe.
However, even if this were so, the Court considers that the reason for the
insertion of those words would have been to ensure that the general aims of
the law of contempt of court should be considered legitimate aims under
Article 10 (2) (art. 10-2) but not to make that law the standard by which to
assess whether a given measure was "necessary". If and to the extent that
Article 10 (2) (art. 10-2) was prompted by the notions underlying either the
English law of contempt of court or any other similar domestic institution, it
cannot have adopted them as they stood: it transposed them into an
autonomous context. It is "necessity" in terms of the Convention which the
Court has to assess, its role being to review the conformity of national acts
with the standards of that instrument.
In addition, the Court exercises its supervision in the light of the case as a
whole (above-mentioned Handyside judgment, p. 23, para. 50).
Accordingly, it must not lose sight of the existence of a variety of reasoning
and solutions in the judicial decisions summarised at paragraphs 22 to 35
above, of extensive debates in England on the law of contempt of court and
of proposals for reform. As regards the latter, the Court observes that,
although the Government Green Paper sets out arguments for and against
certain of the recommendations of the Phillimore Committee, it does not
call in question the suggestion that the "prejudgment" test referred to in the
House of Lords should be reconsidered (see paragraph 37 above).
61. Again, the Court cannot hold that the injunction was not "necessary"
simply because it could or would not have been granted under a different
legal system. As noted in the judgment of 9 February 1967 in the "Belgian
Linguistic" case, the main purpose of the Convention is "to lay down certain
international standards to be observed by the Contracting States in their
relations with persons under their jurisdiction" (Series A no. 5 p. 19). This
does not mean that absolute uniformity is required and, indeed, since the
Contracting States remain free to choose the measures which they consider
appropriate, the Court cannot be oblivious of the substantive or procedural
features of their respective domestic laws (see, mutatis mutandis, judgment
of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, pp. 34-35).
62. It must now be decided whether the "interference" complained of
corresponded to a "pressing social need", whether it was "proportionate to
the legitimate aim pursued", whether the reasons given by the national
authorities to justify it are "relevant and sufficient under Article 10 (2) (art.
10-2)" (above-mentioned Handyside judgment, pp. 22-24, paras. 48-50). In
this connection, the Court has examined the subject-matter of the injunction,
32
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
then the state of the thalidomide case at the relevant time and, finally, the
circumstances surrounding that case and the grant of the injunction.
63. The injunction, in the form ordered by the House of Lords, was not
directed against the draft Sunday Times article alone (see paragraph 44
above). The applicants allege that it also prevented them from passing the
results of their research to certain Government committees and to a Member
of Parliament and from continuing their research, delayed plans for
publishing a book and debarred the editor of The Sunday Times from
commenting on the matter or replying to criticism aimed at him. In fact, the
injunction was couched in terms wide enough to cover such items; its very
breadth calls for a particularly close scrutiny of its "necessity".
The draft article was nonetheless the principal subject-matter of the
injunction. It must therefore be ascertained in the first place whether the
domestic courts' views as to the article's potential effects were relevant in
terms of the maintenance of the "authority of the judiciary".
One of the reasons relied on was the pressure which the article would
have brought to bear on Distillers to settle the actions out of court on better
terms. However, even in 1972, publication of the article would probably not
have added much to the pressure already on Distillers (see paragraph 29,
second sub-paragraph, above). This applies with greater force to the position
obtaining in July 1973, when the House of Lords gave its decision: by that
date, the thalidomide case had been debated in Parliament and had been the
subject not only of further press comment but also of a nationwide
campaign (see paragraphs 13 and 14 above).
The speeches in the House of Lords emphasised above all the concern
that the processes of the law may be brought into disrespect and the
functions of the courts usurped either if the public is led to form an opinion
on the subject-matter of litigation before adjudication by the courts or if the
parties to litigation have to undergo "trial by newspaper". Such concern is in
itself "relevant" to the maintenance of the "authority of the judiciary" as that
expression is understood by the Court (see paragraph 55 above). If the
issues arising in litigation are ventilated in such a way as to lead the public
to form its own conclusion thereon in advance, it may lose its respect for
and confidence in the courts. Again, it cannot be excluded that the public's
becoming accustomed to the regular spectacle of pseudo-trials in the news
media might in the long run have nefarious consequences for the acceptance
of the courts as the proper forum for the settlement of legal disputes.
Nevertheless, the proposed Sunday Times article was couched in
moderate terms and did not present just one side of the evidence or claim
that there was only one possible result at which a court could arrive;
although it analysed in detail evidence against Distillers, it also summarised
arguments in their favour and closed with the words: "There appears to be
no neat set of answers ...". In the Courťs opinion, the effect of the article, if
published, would therefore have varied from reader to reader. Accordingly,
33
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
even to the extent that the article might have led some readers to form an
opinion on the negligence issue, this would not have had adverse
consequences for the "authority of the judiciary", especially since, as noted
above, there had been a nationwide campaign in the meantime.
On the other hand, publication of the proposed article might well have
provoked replies. However, the same is true, to a greater or lesser extent, of
any publication that refers to the facts underlying or the issues arising in
litigation. As items in that category do not inevitably impinge on the
"authority of the judiciary", the Convention cannot have been intended to
permit the banning of all of them. Moreover, although this particular reason
for the injunction might possibly have been "relevant" under Article 10 (2)
(art. 10-2), the Court cannot decide whether it was "sufficient" without
examining all the surrounding circumstances.
64. At the time when the injunction was originally granted and at the
time of its restoration, the thalidomide case was at the stage of settlement
negotiations. The applicants concur with the Court of Appeaľs view that the
case was "dormant" and the majority of the Commission considers it
unlikely that there would have been a trial of the issue of negligence. For
the Government and the minority of the Commission, on the other hand,
such a trial was a real possibility.
An assessment of the precise status of the case during the relevant period
is not needed for the Courťs decision: preventing interference with
negotiations towards the settlement of a pending suit is a no less legitimate
aim under Article 10 (2) (art. 10-2) than preventing interference with a
procedural situation in the strictly forensic sense. The same applies to the
procedure for judicial approval of a settlement (see paragraph 9 above).
What is to be retained is merely that the negotiations were very lengthy,
continuing for several years, and that at the actual moment when publication
of the article was restrained the case had not reached the stage of trial.
Nevertheless, the question arises as to how it was possible to discharge
the injunction in 1976 - by reference, incidentally, to the "pressure
principle" rather than the "prejudgment principle" (see paragraph 35 above).
At that time, there were still outstanding not only some of the parents'
actions but also an action between Distillers and their insurers involving the
issue of negligence; the latter action, moreover, had been set down for trial
(see paragraph 16 above). Discharge of the injunction in these
circumstances prompts the question whether the injunction was necessary in
the first place.
65. The Governmenťs reply is that it is a matter of balancing the public
interest in freedom of expression and the public interest in the fair
administration of justice; they stress that the injunction was a temporary
measure and say that the balance, on being struck again in 1976 when the
situation had changed, fell on the other side.
34
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
This brings the Court to the circumstances surrounding the thalidomide
case and the grant of the injunction.
As the Court remarked in its Handyside judgment, freedom of expression
constitutes one of the essential foundations of a democratic society; subject
to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to
information or ideas that are favourably received or regarded as inoffensive
or as a matter of indifference, but also to those that offend, shock or disturb
the State or any sector of the population (p. 23, para. 49).
These principles are of particular importance as far as the press is
concerned. They are equally applicable to the field of the administration of
justice, which serves the interests of the community at large and requires the
co-operation of an enlightened public. There is general recognition of the
fact that the courts cannot operate in a vacuum. Whilst they are the forum
for the settlement of disputes, this does not mean that there can be no prior
discussion of disputes elsewhere, be it in specialised journals, in the general
press or amongst the public at large. Furthermore, whilst the mass media
must not overstep the bounds imposed in the interests of the proper
administration of justice, it is incumbent on them to impart information and
ideas concerning matters that come before the courts just as in other areas of
public interest. Not only do the media have the task of imparting such
information and ideas: the public also has a right to receive them (see,
mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment of 7
December 1976, Series A no. 23, p. 26, para. 52).
To assess whether the interference complained of was based on
"sufficient" reasons which rendered it "necessary in a democratic society",
account must thus be taken of any public interest aspect of the case. The
Court observes in this connection that, following a balancing of the
conflicting interests involved, an absolute rule was formulated by certain of
the Law Lords to the effect that it was not permissible to prejudge issues in
pending cases: it was considered that the law would be too uncertain if the
balance were to be struck anew in each case (see paragraphs 29, 32 and 33
above). Whilst emphasising that it is not its function to pronounce itself on
an interpretation of English law adopted in the House of Lords, (see, mutatis
mutandis, the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 40,
para. 97), the Court points out that it has to take a different approach. The
Court is faced not with a choice between two conflicting principles but with
a principle of freedom of expression that is subject to a number of
exceptions which must be narrowly interpreted (see, mutatis mutandis, the
Klass and others judgment of 6 September 1978, Series A no. 28, p. 21,
para. 42). In the second place, the Courťs supervision under Article 10 (art.
10) covers not only the basic legislation but also the decision applying it
(see the Handyside judgment, p. 23, para. 49). It is not sufficient that the
interference involved belongs to that class of the exceptions listed in Article
10 (2) (art. 10-2) which has been invoked; neither is it sufficient that the
35
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
interference was imposed because its subject-matter fell within a particular
category or was caught by a legal rule formulated in general or absolute
terms: the Court has to be satisfied that the interference was necessary
having regard to the facts and circumstances prevailing in the specific case
before it.
66. The thalidomide disaster was a matter of undisputed public concern.
It posed the question whether the powerful company which had marketed
the drug bore legal or moral responsibility towards hundreds of individuals
experiencing an appalling personal tragedy or whether the victims could
demand or hope for indemnification only from the community as a whole;
fundamental issues concerning protection against and compensation for
injuries resulting from scientific developments were raised and many facets
of the existing law on these subjects were called in question.
As the Court has already observed, Article 10 (art. 10) guarantees not
only the freedom of the press to inform the public but also the right of the
public to be properly informed (see paragraph 65 above).
In the present case, the families of numerous victims of the tragedy, who
were unaware of the legal difficulties involved, had a vital interest in
knowing all the underlying facts and the various possible solutions. They
could be deprived of this information, which was crucially important for
them, only if it appeared absolutely certain that its diffusion would have
presented a threat to the "authority of the judiciary".
Being called upon to weigh the interests involved and assess their
respective force, the Court makes the following observations:
In September 1972, the case had, in the words of the applicants, been in a
"legal cocoon" for several years and it was, at the very least, far from certain
that the parents' actions would have come on for trial. There had also been
no public enquiry (see paragraph 14 above).
The Government and the minority of the Commission point out that there
was no prohibition on discussion of the "wider issues", such as the
principles of the English law of negligence, and indeed it is true that there
had been extensive discussion in various circles especially after, but also
before, the Divisional Courťs initial decision (see paragraphs 11, 12 and 14
above). However, the Court considers it rather artificial to attempt to divide
the "wider issues" and the negligence issue. The question of where
responsibility for a tragedy of this kind actually lies is also a matter of
public interest.
It is true that, if the Sunday Times article had appeared at the intended
time, Distillers might have felt obliged to develop in public, and in advance
of any trial, their arguments on the facts of the case (see paragraph 63
above); however, those facts did not cease to be a matter of public interest
merely because they formed the background to pending litigation. By
36
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
bringing to light certain facts, the article might have served as a brake on
speculative and unenlightened discussion.
67. Having regard to all the circumstances of the case and on the basis of
the approach described in paragraph 65 above, the Court concludes that the
interference complained of did not correspond to a social need sufficiently
pressing to outweigh the public interest in freedom of expression within the
meaning of the Convention. The Court therefore finds the reasons for the
restraint imposed on the applicants not to be sufficient under Article 10 (2)
(art. 10-2). That restraint proves not to be proportionate to the legitimate
aim pursued; it was not necessary in a democratic society for maintaining
the authority of the judiciary.
68. There has accordingly been a violation of Article 10 (art. 10).
II. ON ARTICLE 14 (art. 14)
69. The applicants also claim to be victims of a violation of Article 10,
taken in conjunction with Article 14 (art. 14+10), which provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status."
They maintain that such violation arose by reason of:
- the fact that allegedly similar press publications were not subjected to
restraints similar to those imposed on the applicants' publications or
activities;
- the difference between the rules applied in Parliament in relation to
comment on pending litigation and the rules of contempt of court applied to
the press.
In the view of the Government and the Commission, there was in this
case no breach of Article 14 read in conjunction with Article 10 (art.
14+10).
7O. According to the Courťs established case-law, Article 14 (art. 14)
safeguards individuals, or groups of individuals, placed in comparable
situations, from all discrimination in the enjoyment of the rights and
freedoms set forth in the other normative provisions of the Convention and
Protocols (see the above-mentioned judgment of 23 July 1968 in the
"Belgian Linguistic" case, p. 34, para. 10; National Union of Belgian Police
judgment of 27 October 1975, Series A no. 19, p. 19, para. 44).
71. The fact that no steps were taken against other newspapers, for
example the Daily Mail, is not sufficient evidence that the injunction
granted against Times Newspapers Ltd. constituted discrimination contrary
to Article 14 (art. 14).
72. With respect to the rules applicable in Parliament (see paragraph 20
above), the Court notes that the members of the Court of Appeal mentioned
37
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
the undesirability, and perhaps even dangers, of there being a substantial
difference, as regards the treatment of matters sub judice, between the
practice of Parliament, whose proceedings are published, and the practice of
the courts. Nevertheless, the Court is of the opinion that the press and
parliamentarians cannot be considered to be "placed in comparable
situations" since their respective "duties and responsibilities" are essentially
different. Furthermore, the Parliamentary debate of 29 November 1972 (see
paragraph 13 above) did not cover exactly the same ground as the proposed
Sunday Times article.
73. There has thus been no violation of Article 14 taken together with
Article 10 (art. 14+10).
III. ON ARTICLE 18 (art. 18)
74. Before the Commission, the applicants had additionally raised a
claim based on Article 18 (art. 18) which provides:
"The restrictions permitted under this Convention to the said rights and freedoms
shall not be applied for any purpose other than those for which they have been
prescribed."
However, they did not maintain this claim before the Court: in their
memorial of 10 February 1978, the accepted the Commission's opinion that
there had been no breach of Article 18 taken in conjunction with Article 10
(art. 18+10).
Neither the Government nor the Commission adverted to this matter
during the oral hearings, although the latter did refer to it in its request
bringing the case before the Court.
75. The Court notes the position taken by the applicants and, in the
circumstances of the case, does not consider that it is necessary for it to
examine this question.
IV. ON ARTICLE 50 (art. 50)
76. Under Article 50 (art. 50) of the Convention, if the Court finds "that a
decision or a measure taken" by any authority of a Contracting State "is
completely or partially in conflict with the obligations arising from the ...
Convention, and if the internal law of the said [State] allows only partial
reparation to be made for the consequences of this decision or measure", the
Court "shall, if necessary, afford just satisfaction to the injured party".
The Rules of Court specify that when the Court "finds that there is a
breach of the Convention, it shall give in the same judgment a decision on
the application of Article 50 (art. 50) of the Convention if that question,
after being raised under Rule 47 bis, is ready for decision; if the question is
38
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
not ready for decision, the [Court] shall reserve it in whole or in part and
shall fix the further procedure" (Rule 50 para. 3, first sentence, read in
conjunction with Rule 48 para. 3).
77. In their memorial of 10 February 1978, the applicants request the
Court to declare that the Government should pay to them a sum equivalent
to the costs and expenses which they had incurred in connection with the
contempt litigation in the English courts and the proceedings before the
Commission and the Court. However, the applicants did not quantify their
claim and, at the hearing on 24 April 1978, their counsel stated that they
hoped that the amount of damage suffered by them could be agreed
"without troubling the Court".
At the hearing on the following day, the Court, pursuant to Rule 47 bis,
invited the Government to present their observations on the question of the
application of Article 50 (art. 50) in the present case. The SolicitorGeneraľs
closing submission was that this was an issue which the Court
would not have to consider.
78. The Court notes that the applicants limit their claim to the abovementioned
costs and expenses but do not for the moment indicate their
amount. In these circumstances, the question of the application of Article 50
(art. 50) of the Convention is not ready for decision; the Court must
therefore reserve the question and fix the further procedure, taking due
account of the eventuality contemplated in Rule 50 (5) of the Rules of
Court.
FOR THESE REASONS, THE COURT
1. holds by eleven votes to nine that there has been a breach of Article 10
(art. 10) of the Convention;
2. holds unanimously that there has been no breach of Article 14 taken
together with Article 10 (art. 14+10);
3. holds unanimously that it is not necessary to examine the question of a
breach of Article 18 (art. 18);
4. holds unanimously that the question of the application of Article 50 (art.
50) is not ready for decision;
accordingly,
(a) reserves the whole of the said question;
39
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
(b) invites those appearing before the Court to notify it, within three
months from the delivery of this judgment, of any settlement at which
the Government and the applicants may have arrived;
(c) reserves the further procedure to be followed on this question.
Done in English and in French, the English text being authentic, at the
Human Rights Building, Strasbourg, this twenty-sixth day of April, one
thousand nine hundred and seventy-nine.
Giorgio BALLADORE PALLIERI
President
Marc-André EISSEN
Registrar
The separate opinions of the following judges are annexed to the present
judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 50 para. 2 of the Rules of Court:
- dissenting opinion of Mr. Wiarda, Mr. Cremona, Mr. Thór
Vilhjálmsson, Mr. Ryssdal, Mr. Ganshof van der Meersch, Sir Gerald
Fitzmaurice, Mrs. Bindschedler-Robert, Mr. Liesch and Mr. Matscher;
- concurring opinion of Mr. Zekia;
- concurring opinion of Mr O'Donoghue;
- concurring opinion of Mr. Evrigenis.
G. B. P.
M.-A. E.
40
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
JOINT DISSENTING OPINION OF JUDGES WIARDA,
CREMONA, THÓR VILHJÁLMSSON, RYSSDAL, GANSHOF
VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
(Translation)
1. With respect, we are unable to share the opinion of the majority of our
colleagues that the contested interference with freedom of expression was
contrary to the Convention because it could not be deemed necessary in a
democratic society for maintaining the authority and impartiality of the
judiciary, within the meaning of Article 10 (2) (art. 10-2) of the Convention.
2. The House of Lords restrained publication of the draft article in
question because it considered that by publishing the article The Sunday
Times would be committing a contempt of court.
It should be noted that it was clearly with a view to covering this
institution, which is peculiar to the legal traditions of the common- law
countries, that the restriction on freedom of expression aimed at maintaining
the authority and impartiality of the judiciary was introduced into the
Convention. A similar restriction is unknown in the law of most of the
member States; absent in the original draft of the Convention, it was
inserted on the proposal of the British delegation.
We would recall, as both the majority and the minority in the
Commission acknowledged, that the general aim of the law on contempt of
court is to ensure the due administration of justice.
This law involves, amongst other things, the possibility of restraining or
punishing such conduct, in particular on the part of the press, as is likely to
interfere with the course of justice whilst proceedings are still sub judice.
Whatever differences of opinion might exist as to the objectionable
character of a publication, it is often considered that there should be a
prohibition on the kind of publication that threatens to engender so-called
"trial by newspaper" (see, for instance, the speeches of Lord Reid, Lord
Morris of Borth-y-Gest, Lord Diplock and Lord Cross of Chelsea in the
House of Lords, paragraphs 29, 30, 31 and 33 of the Courťs judgment in the
present case; the judgment of Lord Denning in the Court of Appeal,
paragraph 25 of the Courťs judgment in the present case; the Phillimore
report, para. 110, and the Green Paper, para. 11).
The law of contempt is intended to prevent, in relation to sub judice
litigation, the growth of an attitude which finds expression in a prejudgment
arrived at without the benefit of the guarantees of impartiality afforded in
judicial proceedings and which, consequently, brings about a climate of
opinion liable to prejudice the due administration of justice. On the other
41
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
hand, the aim of the law of contempt is not to make the judiciary immune
from all criticism. Thus, it was hardly necessary to state in this connection,
as does the judgment, that "the courts cannot operate in a vacuum" (see
paragraph 65 of the judgment). No one has ever thought of putting this in
doubt.
Account must be taken of the above in the interpretation and application
of the restriction made on freedom of expression for the purpose of
maintaining "the authority and impartiality of the judiciary" within the
meaning of Article 10 (2) (art. 10-2).
3. The Law Lords gave a variety of reasons why they considered the
article should be banned. For the majority of their Lordships, the principal
reasons were, in our opinion, the following:
- the proposed article introduced into the press campaign on the
thalidomide affair a wealth of facts concerning the issue as to whether
Distillers had been guilty of negligence in the development, distribution and
use of thalidomide;
- the article did so in a manner whereby the information given painted a
picture clearly suggesting that Distillers had in fact been negligent;
- hence, through publication of the projected article, the issue of
negligence, crucial for the outcome of the actions then pending between the
parents of the deformed children and Distillers, would be prejudged, that is
to say, judged by the press although the court of law hearing the case had
not yet given a ruling attended by the guarantees afforded to the parties in
judicial proceedings;
- such prejudgment by the press, which would inevitably provoke replies
from the parties and give rise to the risk of a "trial by newspaper", is
incompatible with the due administration of justice;
- the courts owe it to the parties to protect them from the prejudices of
prejudgment and from the resultant necessity of having themselves to
participate in the flurries of pre-trial publicity.
These reasons are consistent with the aim embodied in the guarantee of
the due administration of justice, which guarantee is expressed in the
Convention by the notion of the maintenance of "the authority and
impartiality of the judiciary".
It must also be noted that, in so far as these reasons concerned the
protection of the interests of the parties, they were in conformity with the
aim of "the protection of the rights of others", an aim likewise provided for
in Article 10 (2) (art. 10-2).
42
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
4. The difference of opinion separating us from our colleagues concerns
above all the necessity of the interference and the margin of appreciation
which, in this connection, is to be allowed to the national authorities.
5. With reference to the question whether, in order to guarantee the due
administration of justice, it was necessary to restrain publication of the
contested article and of other articles of the same kind, it can be seen from
the reasoning of the House of Lords that the Law Lords put this very
question to themselves when applying the rules on contempt of court. Thus,
Lord Reid stated ([1974] A.C. 294): "[The law on contempt of court] is
there to prevent interference with the administration of justice and it should,
in my judgment, be limited to what is reasonably necessary for that
purpose". Similarly, Lord Cross of Chelsea made the following observation
(ibid. 322): "When the alleged contempt consists in giving utterance either
publicly or privately to opinions with regard to or connected with legal
proceedings, whether civil or criminal, the law of contempt constitutes an
interference with freedom of speech, and I agree with my noble and learned
friend [Lord Reid] that we should be careful to see that the rules as to
`contempť do not inhibit freedom of speech more than is reasonably
necessary to ensure that the administration of justice is not interfered with."
6. When the House of Lords addressed itself to the question of the
necessity of the restraint, it did so with a view to applying the national law.
When, on the other hand, our Court deals with this question, it does so with
reference to Article 10 (art. 10) of the Convention, which pursues two
objectives relevant for the present case. Those two objectives are "freedom
of expression", guaranteed as a fundamental principle in a democratic
society, and "the authority and impartiality of the judiciary", guaranteed in
so far as their maintenance proves necessary in such a society. The Court
must take account of these two objectives in connection with the respect of
the principle of proportionality.
In order to ascertain whether in the circumstances it was necessary for
freedom of expression, guaranteed by the first paragraph of Article 10 (art.
10) of the Convention, to be limited in the interests of justice, mentioned in
the second paragraph of that Article (art. 10-2), one should therefore weigh,
on the one hand, the consequences for the freedom of the press of
restraining the publication in question or similar publications and, on the
other hand, the extent to which this publication could prejudice the due
administration of justice in relation to the actions pending at the time. In the
context of Article 10 (art. 10), this means that a balance must be sought
between the exercise by the press of the right guaranteed to it under
paragraph 1 (art. 10-1) and the necessity under paragraph 2 (art. 10-2) to
impose a restriction on the exercise of this right in order to maintain "the
authority and impartiality of the judiciary" (see, mutatis mutandis, the Klass
43
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
and others judgment of 6 September 1978, Series A no. 28, p. 28, para. 59 in
fine). There is surely no need to recall the essential role that the judiciary
play in English law in the protection of fundamental rights and freedoms.
7. The Court has already had the occasion, notably in the Handyside
judgment of 7 December 1976 (Series A no. 24), to state the correct
approach to the interpretation and application of the phrase "necessary in a
democratic society", within the meaning of Article 10 (2) (art. 10-2), and to
indicate both what its obligations are when faced with issues relating to the
interpretation or application of this provision and the manner in which it
means to perform those obligations.
The Court stated in that judgment that it is for the national authorities to
make the initial assessment of the reality of the pressing social need implied
in each case by the notion of necessity and that, accordingly, Article 10 (2)
(art. 10-2) leaves to the Contracting States a margin of appreciation which
"is given both to the domestic legislator ... and to the bodies, judicial
amongst others, that are called upon to interpret and apply the laws in force"
(see the Handyside judgment, loc. cit., p. 22, para. 48).
This margin of appreciation involves a certain discretion and attaches
primarily to the evaluation of the danger that a particular exercise of the
freedom safeguarded by Article 10 (1) (art. 10-1) could entail for the
interests listed in Article 10 (2) (art. 10-2) and to the choice of measures
intended to avoid that danger (see the Klass and others judgment, loc. cit., p.
23, para. 49). For the purposes of such an evaluation - to be made with due
care and in a reasonable manner, and which of necessity will be based on
facts and circumstances prevailing in the country concerned and on the
future development of those facts and circumstances - the national
authorities are in principle better qualified than an international court.
8. Nevertheless, Article 10 (2) (art. 10-2) does not give the Contracting
States an unlimited power of appreciation. The Court, which with the
Commission is responsible for ensuring the observance of those States'
engagements (Article 19) (art. 19), is empowered to rule on whether a
"restriction" or a "penalty" is reconcilable with freedom of expression as
protected by Article 10 (art. 10). The domestic margin of appreciation thus
goes hand in hand with a European supervision (see the Handyside
judgment, loc. cit., p. 23, para. 49). This supervision is concerned, in the
first place, with determining whether the national authorities have acted in
good faith, with due care and in a reasonable manner when evaluating those
facts and circumstances, as well as the danger that might thereby be
occasioned for the interests listed in Article 10 (2) (art. 10-2); further and
above all, it seeks to ensure that, in a society that means to remain
44
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
democratic, the measures restricting freedom of expression are
proportionate to the legitimate aim pursued (see the Handyside judgment,
loc. cit., p. 23, para. 49, and the Klass and other judgment, loc. cit., p. 23,
para. 49).
We wish to recall at this juncture that there can be no democratic society
unless "pluralism, tolerance and broad-mindedness" (see the Handyside
judgment, loc. cit., p. 23, para. 49) find effective expression in the society's
institutional system, and unless this system is subject to the rule of law,
makes basic provision for an effective control of executive action to be
exercised, without prejudice to parliamentary control, by an independent
judiciary (see the Klass and others judgment, loc. cit., pp. 25-26, para. 55),
and assures respect of the human person.
Accordingly, although it is in no way its task to take the place of the
competent domestic courts, the Court must review under Article 10 (art. 10),
so construed, the decisions delivered by those courts in the exercise of their
power of appreciation (see the Handyside judgment, loc. cit., p. 23, para.
50).
9. In the Handyside case, which concerned a publication whose
prohibition was adjudged by the national courts to be necessary "for the
protection of morals", the Court considered that the competent domestic
courts "were entitled ... to think" at the relevant time that this publication
would have pernicious effects on the morals of the children or adolescents
who would read it.
In the instant case, the Court has to examine whether the House of Lords
was "entitled to think" that publication of the article in question would have
detrimental effects upon the due administration of justice in relation to
actions pending before the courts at the relevant time.
For the majority of our colleagues, the national authorities' margin of
appreciation as to issues concerning the maintenance of the authority of the
judiciary should be narrower than the margin of appreciation which,
according to the Handyside judgment, has to be allowed to them in relation
to issues concerning the protection of morals. Our colleagues maintain that
the notion of the "authority of the judiciary" is far more objective than the
notion of "morals"; that the domestic law and practice of the Contracting
States reveal a fairly broad measure of common ground as regards the
former notion; and that this common ground is reflected in a number of
provisions of the Convention, including Article 6 (art. 6), which have no
equivalent as far as morals are concerned (see paragraph 59 of the
judgment).
We are unable to share this view.
Even though there might exist a fairly broad measure of common ground
between the Contracting States as to the substance of Article 6 (art. 6), it
45
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
nevertheless remains the fact that the judicial institutions and the procedure
can vary considerably from one country to another. Thus, contrary to what
the majority of the Court holds, the notion of the authority of the judiciary is
by no means divorced from national circumstances and cannot be
determined in a uniform way. It is, moreover, to be noted that the instant
case does not bear upon a matter governed by Article 6 (art. 6) but is
concerned with whether or not the publication of certain specific appraisals
and statements regarding sub judice litigation could interfere with the due
administration of justice. The due administration of justice depends, in
addition to what is mentioned in Article 6 (art. 6), upon other rules of
procedure and upon the satisfactory functioning of the judicial institutions.
The above reasoning is no less valid for acts or situations capable of
prejudicing the proper functioning of the courts - acts or situations which
can only be appraised at a given moment in the national context. It is thus
for the national authorities to make the initial assessment of the danger
threatening the authority of the judiciary and to judge what restrictive
measures are necessary to deal with that danger. The relevant restrictions
may vary according to the legal system and the traditions of the country in
question. Within the limits reconcilable with the requirements of a
democratic society, the State concerned is free to determine what method is
most suitable for maintaining the authority of the judiciary. (cf., mutatis
mutandis, the judgment of 23 July 1968 on the merits of the "Belgian
Linguistic" case, Series A no. 6, pp. 34-35).
10. In the United Kingdom, the law of contempt constitutes one of the
means designed to safeguard the proper functioning of the courts. As has
been said above, the authors of the Convention had this law in mind when
they introduced the notion of maintaining "the authority and impartiality of
the judiciary" (see paragraph 2 above).
The task of ensuring that the law of contempt is observed falls to the
domestic courts. In this respect, it would appear undeniable to us that the
House of Lords is in principle better qualified than our Court to decide
whether, in factual circumstances which are for the House to assess, a given
form of restriction on freedom of expression is necessary for maintaining, in
a democratic society, the judiciary's authority within the United Kingdom
itself.
This cannot be taken to the point of allowing that every restriction on
freedom of expression adjudged by the domestic courts to be necessary for
observance of the law of contempt must also be considered necessary under
the Convention.
46
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
While the domestic courts' assessment of the prejudicial consequences
that a given publication might have on the due administration of justice in
the United Kingdom should in principle be respected, it is nevertheless
possible that the measures deemed necessary to avert such consequences
overstep the bounds of what is "necessary in a democratic society" within
the meaning of Article 10 (2) (art. 10-2) (see paragraph 7 above). The Court,
in its consideration of the matter, must pay particular heed to this
fundamental factor in the Convention system.
11. As emerges from the facts set out at paragraphs 11 to 14 of the
judgment, the banned draft article was one of a number of reports on the
tragedy of deformed children, published at intervals since 1967 by The
Sunday Times and other newspapers. These reports were intended partly to
inform the public and partly, at least as far as The Sunday Times was
concerned, to bring pressure on Distillers to improve their offer of
compensation to the victims.
Although a certain number of actions brought by the parents against
Distillers to recover damages were pending at the relevant time, this press
campaign did not provoke any reaction leading to restrictions or penalties
ordered by the courts. The sole injunction to be granted was that made in
respect of the article - the subject of the present proceedings - which was
communicated in draft by The Sunday Times to the Solicitor-General for the
purpose of making sure that its publication would not constitute contempt of
court. According to the House of Lords which sat as the court of last
instance, it was because of the very special character of this article - an
article differing in this respect from the earlier reports - that its publication
had to be deemed objectionable as a contempt of court. In the opinion of the
Law Lords, this special character derived from the fact that the article
mentioned a wealth of previously unpublished facts concerning the issue
whether Distillers had been guilty of negligence. The article tended to
review the evidence and did so in such a manner that conveyed an
impression clearly suggesting that Distillers had been negligent. Thus,
publication of the article was liable to give rise to "prejudgment" of this
issue crucial to sub judice litigation. Such "prejudgment", which would
inevitably provoke replies from Distillers and bring about a "trial by
newspaper", would interfere with the normal course of proceedings pending
before the courts.
According to certain of the Law Lords, the article would likewise have
constituted an act of contempt on the separate ground that it brought
pressure to bear on Distillers with a view to persuading them to settle the
case and to refrain from relying on a defence available to them under the
law. Several of their Lordships also expressed the opinion that during the
pendency of litigation, any "prejudgment" would be objectionable, quite
47
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
apart from the concrete prejudice that such "prejudgment" could actually
cause. We do not deem it necessary to examine these grounds because, in
our view, they do not seem to have been decisive for the judgment. In the
present case, the publication in question dealt especially with factual issues
material to the determination of the charge of negligence and to the
evidence adduced in support of that allegation. It is notably publications of
this kind that constitute the risk which it was the object of the decision of
the House of Lords to avoid.
This is why we consider that the House of Lords, acting on the basis of
the factors which it was evaluating, was "entitled to think" that the
publication of the article in question would have repercussions on pending
litigation that would prejudice the due administration of justice and the
authority of the judiciary. The national judge is certainly better placed than
the Court to determine whether, in a given instance, a publication
concerning sub judice litigation involves a "prejudgment" and the risk of
"trial by newspaper".
12. The applicants submitted before the Court that the actions brought by
the parents against Distillers were "dormant" at the relevant time. In its
report on the present case, the European Commission of Human Rights
considered firstly that it was somewhat improbable that the great majority of
the actions, then subject to negotiation, would eventuate in a court judgment
and secondly that, as regards the actions brought by the parents who as a
matter of principle were not willing to opt for settlement, no court decision
could be anticipated in the foreseeable future.
Assessment of the state of the actions in question depended on what
could be expected at the relevant time in relation to the development of the
negotiations, on the probability of a settlement, on the eventuality that
certain of the parents would accept a settlement and discontinue their
actions whilst others would pursue them, and in general on what were the
more or less immediate prospects either of a settlement or of judgment in
court.
For the purposes of such an assessment which covered a wealth of
contemporary facts and points of procedure, the national judge must, in this
respect also, be taken as being in principle in a better position than the Court
(see the Handyside judgment, loc. cit., p. 22, para. 48). In our view, the
House of Lords was "entitled to think" that in the circumstances then
obtaining the actions concerned could not be regarded as "dormant".
13. The considerations set out above lead us to conclude that the
domestic courts' evaluation of the risk of seeing the article concerned
interfere with the due administration of justice, as well as their assessment
48
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
of the necessity of the measure to be taken within the context of the
domestic law, must be regarded as reasonable.
As has already been pointed out (see paragraphs 8 and 10 above), it is
nevertheless for the Court to determine whether, on the strength of this
evaluation, the restraint on the publication was proportionate to the
legitimate aim pursued and can be deemed necessary in a democratic
society for the maintenance of the authority and impartiality of the judiciary,
within the meaning of Article 10 (2) (art. 10-2).
This determination involves that the Court should take into account not
only the interests of justice, which according to the domestic courts made it
necessary to impose the restraint at the relevant time, but also the
consequences of this measure for the freedom of the press, a freedom which
figures amongst those guaranteed by the Convention as one of the essential
foundations of a "democratic society" and as one of the basic conditions for
that society's progress and development (see, mutatis mutandis, the
Handyside judgment, loc. cit., p. 23, para. 49).
The object of the banned publication related to a tragedy affecting in the
highest degree the general interest. As the Commission rightly pointed out,
in such a situation assessment of negligence becomes a matter of public
concern: the examination of the responsibilities involved and the process of
informing the public undoubtedly constitute legitimate functions of the
press.
However, it cannot be overlooked that the restriction on the freedom of
the press consequent upon the decision of the House of Lords did not
amount to a general restraint on discussing the thalidomide disaster. The
scope of the restraint was limited as to both its subject-matter and its
duration.
14. The subject-matter of the restraint imposed on The Sunday Times
was an injunction against publishing articles that "prejudged" the issue of
negligence or dealt with the evidence relating to the actions then pending.
Freedom to publish other information or to pass judgments on other
aspects of the case remained unaffected, and there was nothing to prevent
The Sunday Times from continuing its publications while refraining from
making any "prejudgment" of the issue of negligence or from dealing with
the evidence related thereto. In particular, this applied both to criticism of
the English law of products liability and to appreciation of the moral side of
the case. It would seem difficult to sustain the view expressed in the
judgment that this limitation is artificial (see paragraph 66 of the judgment).
Moreover, the suggestion contained in the judgment to the effect that the
publication of the Sunday Times article was needed as being the only way in
which the families of the victims could be fully informed of the facts seems
to us incorrect, since it appears that they were advised by a firm of solicitors
49
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
who must have been aware of most of what was essential. Indeed, there is
good reason to think that The Sunday Times itself obtained its information
from these solicitors (see paragraph 16 of the judgment).
15. As regards the duration of the restraint, it should be noted that the
sole aim of the injunction granted was to ensure that for a certain time
premature publications should not be able to prejudice the due
administration of justice in relation to specific litigation. According to the
House of Lords, the necessity to restrain publication of the article stemmed
from the state, at the time of its decision, of the actions pending. Their
Lordships foresaw the possibility that the situation might change, that, even
before the proceedings had been finally terminated, the balance between the
interests of justice and those of the freedom of the press might shift, and that
the injunction might be discharged.
In this connection, the statement of Lord Reid is instructive ([1974] A.C.
301): "The purpose of the law is not to prevent publication of such material
but to postpone it. The information set before us gives us hope that the
general lines of a settlement of the whole of this unfortunate controversy
may soon emerge. It should then be possible to permit this material to be
published. But if things drag on indefinitely so that there is no early
prospect either of a settlement or of a trial in court then I think that there
will have to be a reassessment of the public interest in a unique situation."
Note should also be taken of the observation by Lord Cross of Chelsea
(ibid. 325) that "the respondents [The Sunday Times] will be at liberty to
apply to have [the injunction] discharged if they consider that in the light of
the facts then existing they can persuade the court that there is no longer any
warrant for continuing it".
It does not appear from the evidence that The Sunday Times made any
such application before the injunction was actually discharged at the request
of the Attorney-General on the ground that the public interest no longer
required the restraint. In fact, the situation regarding the thalidomide affair
had changed by then. Following the approval of the settlement between the
majority of the parents and Distillers, the injunction had remained in force
only in relation to the few extant actions, but it had become clear after a
certain time that these actions were no longer being actively pursued.
We have no sufficient reason to suppose that the situation would have
justified the injunction being discharged earlier. As has already been pointed
out, it does not seem that the applicants themselves sought a decision to this
effect.
16. In the light of the considerations set out above, we conclude that the
interference with freedom of expression, adjudged by the national courts in
50
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES WIARDA, CREMONA, THÓR VILHJÁLMSSON,
RYSSDAL, GANSHOF VAN DER MEERSCH, SIR GERALD FITZMAURICE,
BINDSCHEDLER-ROBERT, LIESCH AND MATSCHER
the instant case to be necessary according to the law of contempt in the
interests of the due administration of justice, did not overstep the limits of
what might be deemed necessary in a democratic society for the
maintenance of "the authority and impartiality of the judiciary" within the
meaning of Article 10 (2) (art. 10-2).
On the basis of the material before the Court, we consider that no
infringement of the requirements of Article 10 (art. 10) has been established.
51
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE ZEKIA
CONCURRING OPINION OF JUDGE ZEKIA
First part
In the instant case, in interpreting and applying Article 10 paras. 1 and 2
(art. 10-1, art. 10-2) of the Convention to the intended publication of the
proposed article of The Sunday Times, relating to the plight of the
thalidomide drug victims, we have to lay emphasis on the object and scope
of the relevant provisions contained in the Convention.
Full account of the facts was given before us. Relevant documents were
produced. Reference was made to the relevant legal points and judicial
decisions. The views of the parties participating in the proceedings were
exhaustively put forward by their memorials and counter memorials as well
as by their submissions in the oral hearings. The Court had this advantage
before embarking on the discharge of its judicial task.
The basic issues under Article 10 (art. 10) which have to be determined
are two. I propose to formulate them in two questions.
Question no. 1
Was the restriction, imposed by an injunction, on the right to freedom to
publish the draft article in The Sunday Times "prescribed by law" within the
ambit and object of the Convention in general and of Article 10 (art. 10) in
particular?
Question no. 2
Was such restriction "necessary", as required by Article 10 (2) (art. 10-2),
in a democratic society for maintaining the authority and impartiality of the
judiciary and/or for protecting the reputation or rights of others?
An answer in the affirmative to question 1 is a sine qua non for a possible
similar answer to question 2.
My answer to question 1 is in the negative. I proceed to give as briefly as
possible my reasons:
(1) Article 1 (art. 1) of the Convention reads: "The High Contracting
Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention." In Section I, Article 10
(1) (art. 10-1) reads: "Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers ...".
In ascertaining the meaning, scope and object of restrictions to be
prescribed by law occurring in paragraph 2 of the same Article 10 (art. 10-
2), one must not lose sight of the fact that the right to freedom of expression
accorded to everyone by the previous paragraph has to be reasonably
secured, enjoyed or exercised. Both paragraphs are interdependent. Any
restriction affecting the exercise of the right to freedom of expression must
52
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE ZEKIA
be reasonably foreseeable or predictable. You cannot enjoy or exercise the
right to freedom of expression if the enjoyment of such right is made
conditional and subject to a law or a rule or principle abounding in
uncertainties. This would be tantamount to an undue restriction, even to a
denial, of such freedom of expression. I am of the opinion therefore that the
phrase prescribed by law or "prévues par la loi" in French means a law
imposing restrictions which is reasonably ascertainable. The enactment
might be made by statute or by common law consistently established.
I am in agreement with the applicants that the branch of the common law
of contempt of court dealing with publications relating to pending civil
proceedings is not prescribed by law within the framework and object of
paragraphs 1 and 2 of Article 10 (art. 10-1, art. 10-2) of the Convention. I
note that the Commission in its report merely proceeded on the assumption
that the restriction imposed on the applicants was prescribed by law and that
doubt was cast on this assumption by the Commission's Principal Delegate
during the oral hearings.
(2) Whether or not a particular publication in the press and other mass
media amounts to a contempt of court in relation to pending civil
proceedings depends on the criteria or test to be applied. There are a number
of criteria and kinds of tests available. There is no settled or uniform
practice as to which criterion is to be adopted in a given case and the result
may differ according to the test applied.
(3) The tests and criteria applied in the enforcement of the law of
contempt against publications in the press are so varied and subjective in
nature that it is very difficult to foresee in a particular case what test is
going to be applied and with what result.
A glaring example of the uncertainty and the unsatisfactory state of the
law of contempt touching pending civil proceedings vis-a-vis press
publications is to be found in the conflicting opinions expressed by the Law
Lords on the Sunday Times article of 24 September 1972 about the
thalidomide tragedy.
According to Lord Diplock and Lord Simon, the offence of contempt of
court was committed, whereas Lord Reid and Lord Cross held, on the
contrary, that there was no contempt of court.
Disputable legal points might arise even in the interpretation of a statute
law as well as in the case of a rule of common law. But the position is not
the same when we are dealing with a branch of the common law - comtempt
of court - which is not established to the extent of being reasonably regarded
as a settled part of the common law. We have a number of principles
referring to such a branch of the law. These principles might be useful to
interpret an existing law but not to substitute a law which is not enacted or
established at common law. But I doubt very much whether the principles
alone put together would amount to a law.
53
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE ZEKIA
(4) Eminent judges of high standing in England describe the branch of
the common law that concerns contempt of court as being uncertain,
inconsistent and lacking the clarity badly needed. Lord Reid in his judgment
in the present case in the House of Lords stated (see page 294): "I cannot
disagree with a statement in a recent report of Justice on `The Law and the
Press' (1965) that the main objection to the existing law of contempt is its
uncertainty."
Lord Denning M.R., in giving evidence before the Phillimore Committee
in connection with the starting point of pending civil proceedings affecting
publications in the press, stated: "I am all in favour of it being clarified. At
present the press hesitate when they ought to make comment in the public
interest. The reason is that they are apprehensive because the law is so
uncertain. I think they ought to know where they stand."
Lord Salmon, when asked about the point at which contempt should start
to apply in civil proceedings, stated (ibid.): "Nowhere, because I would not
have any contempt. I say never. Certainly never in a judge-alone case. I
think the law of libel takes care of anything you may say about a civil case,
and if a judge is going to be affected by what is written or said, he is not fit
to be a judge."
In Part V of the Phillimore Committee report, dealing with the summary
of conclusions and recommendations, it is stated on page 92: "(4) The law
as it stands contains uncertainties which impede and restrict reasonable
freedom of speech ... (5) One area of uncertainty concerns the period of
operation of the law of contempt, as to whether publications are at risk
when proceedings are imminent and, if so, what period that expression
covers."
At what stage of civil proceedings the subject-matter in dispute is to be
considered as sub judice or the trial of the matters in dispute is to be
considered as imminent are questions which cannot be answered with
accuracy owing to lack of clarity in the law of contempt.
(5) It has to be borne in mind that the contempt of court under
consideration is a criminal offence, a misdemeanour which entails
imprisonment and fine and/or an order to give security for good behaviour.
This being so, the fundamental principle requiring clear and unambiguous
definition of an offence or crime applies also to the offence of contempt of
court under review. The summary procedure adopted in contempt of court
cases creates another difficulty, namely to what extent this procedure is
compatible with Article 6 (art. 6) of the Convention.
(6) The right of the press to freedom of expression is undoubtedly one of
the fundamental characteristics of a democratic society and indispensable
for maintaining freedom and democracy in a country. Under Article 1 (art.
1) of the Convention, the High Contracting Parties undertook to secure to
54
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE ZEKIA
everyone within their jurisdiction the rights enumerated in Section I of the
Convention, and the liberty of the press is covered in the said Section. The
exercise and enjoyment of this right cannot reasonably be attained or
achieved if they are handicapped and restricted by legal rules or principles
which are not predictable or ascertainable even by a qualified lawyer.
The prejudgment principle evolved by the House of Lords in this case
does not solve the problem we face under Article 10 (art. 10) of the
Convention. There are two reasons:
(a) Even if we assume that the House of Lords settled the law, the
material date for ascertaining whether the branch of the common law that
concerns contempt of court was prescribed by law or not is the date the
Sunday Times draft article was put before the Divisional Court and not
before the Law Lords. In the oral submissions made by the parties during
the hearings, reference was made to the authority of the House of Lords in
dealing with the case as a final court of appeal. According to the applicants'
submission, the Law Lords, by their judgment in the present case, gave to
the branch of the law of contempt of court concerning pending civil
proceedings a definition which was quite novel. The respondent
Government did not agree.
It is not the business of this Court to enquire whether the House of Lords,
sitting as a final court of the land, has the power to amend, supplement,
consolidate, shape or improve the common law according to the demands of
the time and circumstances.
It is not admitted that the Law Lords make laws but claimed that they
simply declare the law. However, the applicants' counsel in his submission
said that this was a fiction and that the House was making new law.
It may, however, become our business to find out whether the House of
Lords, by their judgment in the present case, have amended or
supplemented the branch of the common law of contempt of court we are
dealing with. This is because, if the judgment in effect amounted to an
amendment or supplementing of such law, then Article 7 (art. 7) of the
Convention becomes relevant for consideration. Personally, I incline to the
view expressed by the applicants, but I am content to refer to this aspect of
the case as another source of uncertainty in the branch of contempt of court
under review and nothing more.
(b) The prejudgment principle does not provide the press with a
reasonably safe guide for their publications. The absolute rule indicated by
Lord Cross in applying the prejudgment test - not taking into account
whether a real risk of interference with or prejudice to the course of justice
exists - inhibits innocuous publications dealing incidentally with issues and
evidence in pending cases in order to avoid a gradual slide towards trial by
newspapers or other mass media. This appears to me to be a very restrictive
absolute rule which is difficult to reconcile with the liberty of the press. In a
matter of public concern such as the national tragedy of thalidomide it
55
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE ZEKIA
would be very difficult to avoid, in one way or another, reference to the
issues and evidence involved in a pending case.
The diversity of the criteria adopted in this case by Chief Justice Widgery
in the Divisional Court and Lord Denning and his colleagues in the Court of
Appeal and the criterion evolved by the majority of the House of Lords
illustrate the unsatisfactory and unsettled state of the rules or principles of
contempt of court dealing with press publications in pending civil matters.
This is especially so when such publications are made in good faith without
misrepresentation and are not calculated to interfere with or prejudice the
course of justice and, furthermore, when factual accuracy is claimed and the
subject matter is of public concern.
Conclusion as to question no. 1
In my view, the branch of the common law that concerns contempt of
court dealing with publications in the press and other media in connection
with pending civil proceedings was - at any rate on the material date uncertain
and unsettled - and unascertainable even by a qualified lawyer - to
such an extent that it could not be considered as a prescribed law within the
purview and object of Articles 1 and 10 (1) and (2) (art. 1, art. 10-1, art. 10-
2) of the Convention. The phrase "prescribed by law" in its context does not
simply mean a restriction "authorised by law" but necessarily means a law
that is reasonably comprehensive in describing the conditions for the
imposition of restrictions on the rights and freedoms contained in Article 10
(1) (art. 10-1). As we said earlier, the right to freedom of the press would be
drastically affected unless pressmen, with a reasonable degree of care and
legal advice, can inform and warn themselves of the risks and pitfalls lying
ahead due to the uncertainties of contempt of court.
Second part
Question no. 2
Was the injunction restraining The Sunday Times from publishing the
draft article "necessary" in a democratic society for maintaining the
authority and impartiality of the judiciary and/or for protecting the rights of
others?
Independently of any answer to question no. 1, my answer to this
question is also a negative one. I have, however, less to say on the second
issue because I respectfully associate myself with the main reasons
enunciated in the majority judgment of the Court.
As I have already stated, the right of the press to freedom of expression is
indispensable in a democratic society; equally, it is of paramount
importance to maintain the authority and the impartiality of the law courts
and to safeguard the rights of the parties who have recourse to such courts.
56
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE ZEKIA
On this aspect I can usefully quote from the judgment of Lord Morris in the
House of Lords (at page 302):
"In the general interests of the community it is imperative that the authority of the
courts should not be imperilled and that recourse to them should not be subject to
unjustifiable interference. When such unjustifiable interference is suppressed it is not
because those charged with the responsibilities of administering justice are concerned
for their own dignity: it is because the very structure of ordered life is at risk if the
recognised courts of the land are so flouted that their authority wanes and is
supplanted. But as the purpose and existence of courts of law is to preserve freedom
within the law for all well disposed members of the community, it is manifest that the
courts must never impose any limitations upon free speech or free discussion or free
criticism beyond those which are absolutely necessary" (my italics).
While I am in agreement with the above statements of Lord Morris, in
applying the directions contained therein to the facts of the instant case I, as
a Member of this Court, arrive, however, at a different conclusion.
The criteria of the European Court of Human Rights in weighing the
necessity required for imposing restrictions on the rights to freedoms
enumerated in Article 10 (art. 10) of the Convention might differ at times
from those adopted by national courts.
Undoubtedly, the principle of margin of appreciation already embodied
in the jurisprudence of this Court has to be borne in mind and applied in
favour of the national judicial system. But the gap between the two systems
and the standards adopted for the exercise of the rights to freedoms covered
by the Convention might be too wide to be bridged by the aforesaid
principle.
Whenever it considers it reasonable and feasible, this Court should work
out a uniform international European standard for the enjoyment of the
rights and freedoms included in the Convention. This could be done
gradually when the occasion arises and after giving the appropriate full
consideration to national legal systems.
The Preamble to the European Convention on Human Rights and
Fundamental Freedoms contains references to this end. It states that the
Governments signatory thereto:
"...
Considering that [the Universal Declaration of Human Rights] aims at securing the
universal and effective recognition and observance of the Rights therein declared;
...
Reaffirming their profound belief in those Fundamental Freedoms which are the
foundation of justice and peace in the world and are best maintained on the one hand
by an effective political democracy and on the other by a common understanding and
observance of the Human Rights upon which they depend;
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THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE ZEKIA
Being resolved as the Government of European countries which are likeminded and
have a common heritage of political traditions, ideals, freedom and the rule of law, to
take the first steps for the
collective enforcement of certain of the Rights stated in the Universal Declaration;
Have agreed as follows:"
- then follow the Articles of the Convention.
In the legal systems of those continental States which are the original
signatories of the Convention, there is, as far as my information and
knowledge go, nothing similar to the branch of the common law of
contempt of court - with its summary procedure - touching publications
which refer to pending civil proceedings. Notwithstanding this fact these
countries manage to maintain the authority and impartiality of their
judiciary. Am I to accept any submission to the effect that conditions in
England are different and that they have to keep alive unaltered the common
law of contempt of court under discussion, which is over two centuries old,
in order to safeguard the authority and impartiality of the judiciary? My
knowledge and experience gained from long years of association with
English judges and courts prompt me to say unreservedly that the standard
of the judiciary in England is too high to be influenced by any publication in
the press. I confess I may be considered as biased in making this statement.
In the present case, we are in all probability only concerned with a
professional judge. In this connection, I associate myself with the remarks
made by Lord Salmon quoted above.
Undoubtedly, the supreme judicial authority in England is fully entitled
to judge about the legal measures to be taken in order to secure the
independence and the authority of the courts and rights of the parties and to
keep the streams of justice clear and pure, but, in the light of the criteria and
tests applied, I feel unable, as a judge of the European Court, to agree that
the grant of an injunction to restrain publication of the draft Sunday Times
article was necessary under Article 10 (2) (art. 10-2) of the Convention.
Publication of the proposed article was not intended or calculated to
interfere with or prejudice the course of justice or the rights of the parties
involved. The article was admittedly written for publication in good faith
and with a proper motive. Factual accuracy of the facts stated therein was
claimed by the publisher and this was not in effect disputed. The subjectmatter
of the article was the thalidomide drug victims. The magnitude of
their plight was amply described as a national tragedy. The imputation of
negligence to Distillers for not properly testing the drug before marketing it
was made in the article and, in fact, the most objectionable part of the article
seems to be this aspect. However, discussions and comments relating to the
issue of negligence were directly or indirectly ventilated in the press for ten
58
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE ZEKIA
years and had recently been commented on in Parliament which did not
treat the issues involved as sub judice. I do not therefore accept that
Distillers would have been improperly brought under pressure to desist from
their defence if the proceedings had come on for trial. If there had been a
proper testing of the drug before marketing, they could easily have proved it
and rebutted the allegation of negligence.
Whether the trial in the pending proceedings was imminent or not having
regard to the long inactivity in the proceedings is a matter open to serious
doubts.
Measures for the prevention of a slide towards trial by newspaper should
no doubt be taken when necessity arises. But, in the absence of evidence of
an existing trend towards such a slide, I would not agree to be guided by
abstract possibilities or to act for the sake of a principle when no sufficient
grounds exist to make its application expedient. Furthermore, as is stated in
the summary of Lord Denning's judgment in the Court of Appeal (paragraph
25 of the European Courťs judgement): "`Trial by newspaper' must not be
allowed. However, the public interest in a matter of national concern had to
be balanced against the interest of the parties in a fair trial or settlement; in
the present case the public interest in discussion outweighed the potential
prejudice to a party ... Even in September 1972, the proposed article would
not have amounted to contempt: it was fair comment on a matter of public
interest ...". If the intended publication of the article in question was likely
to create a real and substantial risk of interference with or prejudice to the
administration of justice my answer to question no. 2 would have been in
the affirmative.
No doubt one has, when circumstances so require, to strike a balance
between the freedom of the press and other mass media and maintaining the
authority and impartiality of the judiciary. Both are fundamental organs in a
democratic society and vital for the public interest. Any clash between them
should be avoided. The primary duty to avoid such a clash and keep the
balance lies with the judiciary and on the criteria to be indicated by law and
enforced by the courts. This is why I lay emphasis on the tests applied for
the enforcement of the branch of common law of contempt of court that
concerns the press.
I may be repeating myself in saying that this Court should not hesitate to
lay down when the occasion requires a set of principles to serve as
guidelines and a common denominator in the observance of the freedoms
and the permissible limitations on such freedoms within the terms and ambit
of the Convention.
I cannot restrain myself from stating that the traditional standard of the
newspaper publishers in England, in discharging their duties and
responsibilities towards the public and the national authorities and in
imparting accurate information to their readers, can safely by compared
with that of their continental colleagues. Therefore, it is difficult to
59
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE ZEKIA
understand the expediency of imposing a greater degree of limitation on the
liberty of the press in England by keeping an anachronistic branch of the
law of contempt alive.
Again going out of my way, I venture to take the liberty and conclude my
separate opinion with the following remarks:
The birthplace of the Magna Carta, the Bill of Rights and the basic
principles of justice - embodied in the Anglo-Saxon judicial system and the
substantial part of them already incorporated into the articles of the
European Convention on Human Rights and Fundamental Freedoms - in my
humble opinion can easily afford either to do away altogether with the
branch of the common law of contempt of court under review or to amend
this part of the law of contempt of court on the lines indicated in the
Phillimore Committee report.
60
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE O'DONOGHUE
CONCURRING OPINION OF JUDGE O'DONOGHUE
I agree with the conclusions in the separate opinion of Judge Zekia and
with his reasoning on questions 1 and 2.
61
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE EVRIGENIS
CONCURRING OPINION OF JUDGE EVRIGENIS
(Translation)
Although I voted with the majority of the Court on all the items in the
operative provisions of the judgment, I consider that the interference, as
grounded in law by the decision of the House of Lords, could not be
regarded as "prescribed by law" within the meaning of the Convention.
The restrictions on the right to freedom of expression which are provided
for in paragraph 2 of Article 10 (art. 10-2) constitute exceptions to the
exercise of that right. As such, they not only must be narrowly interpreted
(Klass and others judgment of 6 September 1978, Series A no. 28, p. 21,
para. 42, cited at paragraph 65 of the judgment in the present case) but also
presuppose a definition in domestic law which is sufficiently clear and
unambiguous, thus permitting anyone exercising his freedom of expression
to act with reasonable certainty as to the consequences in law of his
conduct.
It would be difficult to affirm that the action taken against the applicants
fulfilled this condition. In the United Kingdom, the uncertainty of the law of
contempt of court often gives rise to criticism in literature and judicial
decisions, as well as in the reports of various commissions of enquiry or
reform (see Report of the Committee on Contempt of Court, 1974, Cmnd.
5794, para. 216, sub-paragraphs (4) and (5)); this feature was highlighted by
the application of that law by the House of Lords in the present case,
through the "prejudgment principle" (see the direction issued by the House
following its judgment). It is significant, firstly, that the majority of the
Commission hesitated to give a direct ruling on the merits of this question
(Commission's report, paragraph 205) and, secondly, that the references
appearing in the Courťs judgment in support of the view that the
interference based on the decision of the House of Lords was "prescribed by
law" are not very convincing. The Courťs judgment cites, in particular, two
precedents (see paragraphs 51 and 52). The first, Vine Products Ltd. v.
Green (1966), which was based on the "pressure principle", was criticised
several times by the Law Lords in the context of the present case. The
second, Hunt v. Clarke (1889), does not appear to have motivated the
decision of the House of Lords when defining the "prejudgment principle".
Again, it is striking that the latter principle was not the legal basis for any of
the decisions rendered in this case by the other English courts, including the
decision of the Divisional Court which in 1976, three years after the
judgment of the House of Lords, discharged the injunction. If, consequently,
one has to conclude that the principle justifying the interference under
domestic law appears new (see C.J. Miller, in The Modern Law Review,
62
THE SUNDAY TIMES v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE EVRIGENIS
vol. 37 (1974), p. 98), its implementation by the highest national court
proves to be incompatible with the requirements of Article 10 (2) (art. 10-2)
of the Convention.
Of course, no one can disregard the special features of a domestic legal
system in whose formation case-law is traditionally called upon to play a
prominent role; neither can anyone lose sight of the fact that the
delimitation of the restrictions mentioned in Article 10 (2) (art. 10-2) of the
Convention employs indeterminate concepts which do not always sit well
with the existence of legal rules of conduct that are quite precise, certain and
foreseeable in their identification by the judge. Nevertheless, there was an
obligation on the Court to be more prudent before adopting a generous
interpretation of the phrase "prescribed by law"; the consequence of such an
interpretation would be to weaken the principle of the rule of law and to
expose a fundamental freedom, which is vital to the democratic society
envisaged by the drafters of the Convention, to the risk of interferences that
cannot be reconciled with the letter and spirit of that instrument.
63