European Court of Human Rights

Mr. Balladore Pallieri assumed the office of President of the Chamber (Rule 21 para. 5).

The Government’s 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 applicant’s memorial, but reserved the right to do so at the oral hearings.

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.

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.

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

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.

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.

"... 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 Attorney-General’s application for an injunction restraining publication of this future article on the ground that it would constitute contempt of court (see paragraphs 17 to 35 below for a summary of the draft article and particulars of the contempt proceedings).

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 Court’s 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).

(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.

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

"- 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 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.

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

"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;

(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".

The domestic contempt proceedings

(a) Introduction

(b) Decision of the Divisional Court

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.

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

"... 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 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.

(d) Decision of the House of Lords

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 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 Appeal’s 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.

"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 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.

"... 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.

"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 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.

"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

Proposals for reform of the law of contempt of court

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 amounted to intimidation or unlawful threats to his person, property or reputation.

PROCEEDINGS BEFORE THE COMMISSION

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;

- 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.

- 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)

"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 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).

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.

"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’."

A. Was the interference "prescribed by law"?

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.

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. 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."

- 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 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.

B. Did the interference have aims that are legitimate under Article 10 para. 2 (art. 10-2)?

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.

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.

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;

- 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 pre-trial 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?

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 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 Court’s 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 Court’s 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).

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).

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 Court’s opinion, the effect of the article, if published, would therefore have varied from reader to reader. Accordingly, 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.

An assessment of the precise status of the case during the relevant period is not needed for the Court’s 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.

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 Court’s 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 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.

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 Court’s 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 bringing to light certain facts, the article might have served as a brake on speculative and unenlightened discussion.

II. ON ARTICLE 14 (art. 14)

"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 Court’s 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).

III. ON ARTICLE 18 (art. 18)

"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.

IV. ON ARTICLE 50 (art. 50)

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 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).

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 Solicitor-General’s closing submission was that this was an issue which the Court would not have to consider.

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;

(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.