England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 25 January 2001

1. LORD PHILLIPS, MR: In the course of the hearing, there was placed before the Court, with some little drama, a book, "The Big Breach: From Top Secret to Maximum Security". Some evidence about the publication of this book has been provided in a witness statement of a Mr Korovin, the Deputy Director of ZAO "Narodny Variant", a company registered under Russian law since June 1999. He states:

"ZAO 'Narodny Variant' is publishing in Russia a book written by Mr Richard Tomlinson entitled 'The Big Breach: From Top Secret to Maximum Security' ('the Book'). The initial print run of the Book which is in English is ten thousand copies. The Book is to be sold in Moscow bookshops and in other major cities in Russia. Copies of the Book will also be sent to United States of America, Germany and other European countries where they will be put on sale to the public. It will also be available for purchase through a dedicated website. The book will be available to the general public from Friday, 19 January 2001."

2. That statement was signed on 17 January 2001. Evidence of enquiries made on behalf of the Attorney General indicates that none of the bookshops in Moscow, which sell English language publications, had the book in stock on 22 January. A website that advertises the book states that the book launch press news conference that had been scheduled for 22 January is postponed for a few days. In these circumstances it remains unclear how many copies of this book are currently in circulation and whether or not this is simply an advance copy that the first defendant has obtained.
3. Mr Tomlinson, the author of the book, was employed as an officer in the British Secret Intelligence Service ("the SIS") from 1991 to 1995. The book appears to consist largely of an account of his time in the SIS. As such its contents include, and largely consist of, matters whose disclosure appears to constitute a breach of confidence on his part. Some of those matters are, or may be, potentially damaging to the SIS and thus to the national interest, and may even endanger the lives of those who serve in the SIS by disclosing their identities. I say "may" because the frontispiece to the book states:

"In order to protect their identities, the names of all serving MI6 officers have been changed except those of the chiefs, who have been publicly declared by MI6. The names of other private individuals have also been changed, except where they have been widely reported in the press or have specifically given permission for their real names to be used. Details of the MI6 operations described here have also been altered."

4. This Court is in no position to judge how far attempts to disguise identities and operations may have achieved their object.
5. The First Defendant ("TNL") publishes, among other publications, The Sunday Times. The Second and Third Defendants are journalists who work for the First Defendant. If and when the book has been published in Russia, so as to be available to those who wish to obtain a copy, TNL wish to publish extracts in The Sunday Times. In 1996, when these proceedings were commenced, they gave an undertaking to the Attorney General. The terms of that undertaking will, unless varied, prevent such publication. On 11 January 2001 TNL applied for permission to vary the undertaking. On 19 January Eady J granted their application but gave permission to appeal and granted a stay pending the hearing of that appeal. We heard the appeal yesterday. In the course of the hearing it became apparent that the differences between the parties had been reduced to one short issue of principle.
6. The background facts are as follows. After the termination of his employment with the SIS, Mr Tomlinson provided the First Defendant with confidential information that he had obtained in the course of his employment, the disclosure of which was potentially damaging to the national interest. Articles appeared in The Sunday Times on 19 May 1996, 26 May and 16 June, which appeared to be based on information received from Mr Tomlinson. In these circumstances assurances were sought, and satisfactory assurances were given, by the First Defendant that no further such publications would be made. Mr Tomlinson himself, however, made it plain that he intended to continue to make disclosures and he disclosed the fact that he had written a book about his experiences in the SIS. This led to proceedings being issued against him, and in September 1996 an interlocutory injunction was granted restraining him from making disclosures. Copies of this were sent to the Press Association. The injunction granted did not, however, bind the First Defendant in relation to information that had been disclosed to it by Mr Tomlinson before 20 September 1996. On 22 September 1996 the Sunday Times published a further article which the SIS considered was based, at least in part, on information that had been derived from Mr Tomlinson. Accordingly they issued the present proceedings on 11 November 1996. Before that date they were granted an interlocutory injunction which was subsequently varied slightly. On the return date, 14 November 1996, they proffered undertakings to Toulson J, which were agreeable to the Attorney General. The material part of these undertakings recorded that they agreed not to publish:

"in The Sunday Times or in any other organ of the media or disclose otherwise howsoever:

1. (a) any information relating to the identity of a former employee of the Secret Intelligence Service ('SIS') referred to in the affidavit of Roland John Phillips herein as 'T' or to his former employment in the SIS; or

(b) any information obtained by the Defendants or any of them directly or indirectly from T in relation to security or intelligence, that is in relation to the work of, or in support of, the security and intelligence services, such information having been received by T in the course of or as a result of his employment in the SIS ...

Provided that:

A.nothing in this undertaking prevents the Defendants or any of them from republishing anything which has previously been published in The Sunday Times or in any other national newspaper ...

C.in addition, nothing in the above undertaking shall prevent the Defendants from publishing that ...

(ii) the Defendants believe that T proposes or has proposed to publish a book about his former work with the SIS (the Defendants not being at liberty to suggest that the SIS or any other official source have confirmed the accuracy of this belief)."

7. In proffering this undertaking, TNL made no concession that the publication made in September 1996 was based in whole or in part on information derived from Mr Tomlinson. This is something they have always denied.
8. The identity of Mr Tomlinson and the fact of his service in the SIS soon became notorious. Subsequently, on 29 January 1999, the Attorney General informed TNL that they could be released from their undertaking not to disclose the fact that "T" was Mr Tomlinson and that he had worked for the SIS.
9. When the application came before Eady J, the first variation of their undertaking for which TNL applied, was the deletion of 1(a). As I have just explained, this was a formality as the Attorney General had already agreed to it. The substantial application was that the proviso A should be varied to read as follows:

"Provided that:

A.Nothing in this undertaking prevents the Defendants or any of them from republishing anything which at the date of publication or intended publication by the Defendant or Defendants:

(i) has previously been published in The Sunday Times or in any other national newspaper; or

(ii) has previous been published in any newspaper, magazine or other publication generally accessible to the public at large whether within or outside the jurisdiction of the Court (other than in a case where the only such publication was made by or was caused by the defendants or any of them);

(iii) has previously been published or made generally accessible to the public at large on, by or through the internet or other electronic medium (other than a case where the only such publication was made or was caused by the defendants or any of them)."

10. The ground for seeking this variation was succinctly explained by Mr Martin Kramer, the Defendants' solicitor, in a witness statement dated 11 January 2001:

"As will be seen from the correspondence exhibited to this Witness Statement, the Claimant's principal concern has been that the Defendants will obtain a copy of a book written by Richard Tomlinson which deals, inter alia, with his employment in the Secret Intelligence Service. Once Mr Tomlinson's book becomes generally available, the Defendants believe that it will have entered the public domain as described by Lord Goff in Spycatcher (Attorney-General v Guardian Newspapers Ltd (No 2) [1990] AC 109 at 282C-D). If the book does come into the public domain, the First Defendant will wish to publish extracts from it relating to Mr Tomlinson's previous employment. At present, such information is caught by the Order of Toulson J, the proviso to which is too narrowly drawn."

11. At that stage the attitude of the Attorney General was apparent from correspondence between the Defendants' solicitors and the Treasury Solicitor in the previous months. On 30 November 2000, the Treasury Solicitor wrote as follows:

"My clients would be content to vary the Order to permit publication of material put into the public domain by others without the involvement of your clients. Your proposed variation is not, however, acceptable.

It is quite possible that, even if unauthorised disclosure of damaging material occurs abroad, the material may be disclosed to a 'section of the public' so small or obscure that no, or limited, damage may have been done until the story is picked up by a national newspaper, such as those of your clients.

Your paragraph (ii) is therefore not acceptable, particularly since there have been instances of information being 'trailed' in obscure publications abroad, and then picked up by national newspapers, in circumstances where there must be a strong suspicion that the trailer has been contrived for the purpose.

In order to guard against this possibility, my clients would be content with a variation which makes it clear that publication is permitted only where the relevant information has previously come to the widespread attention of the public at large. I attach some suggested wording which I trust you will find acceptable.

In circumstances where there was any doubt about whether the publication had been on such a scale that confidentiality had been lost, I would suggest your clients consult with my clients, as they did about Mr Tomlinson's photograph. Should your clients decide to publish material in absence of such consultation, and this resulted in a breach of the injunction, it would be for them to explain to the court what steps they had taken to ensure no such breach occurred."

12. The suggested wording varied the undertaking as follows:

"Provided that:

A.Nothing in this undertaking prevents the defendants or any of them from republishing anything which at the date of publication or intended publication by the defendant or defendants:

(i) has previously been published in The Sunday Times or in any other national newspaper; or

(ii) has previously been published in any newspaper, magazine or other publication, whether within or outside the jurisdiction of the court, in circumstances where the Defendants can demonstrate that the publication has come to the widespread attention of the public at large (other than in a case where such publication was made by or was caused by or on behalf of the Defendants or any of them): or

(iii) has previously been published on or through the Internet, or other electronic medium, in circumstances where the Defendants can demonstrate that the publication has come to the widespread attention of the public at large (other than in a case where such publication was made or was caused by or on behalf of the Defendants or any of them)."

13. By the time this matter came before Eady J, the attitude of the Attorney General had hardened. He was no longer prepared to agree to a variation of the wording of paragraph A of the proviso to the undertaking. This was because TNL had failed to clarify certain matters which were of concern to the Attorney General. A witness statement from the Head of Security and Counter Intelligence of the SIS, identified only as "H", spoke of contacts that had been monitored between TNL and Mr Tomlinson. The speculative possibility was advanced that TNL had colluded with Mr Tomlinson to arrange publication of the book in Russia and that they were seeking to found on this to get out of their undertaking to the Court.
14. Mr Crow, for the Attorney General, argued before Eady J that the law clearly demonstrated that a party had to show good grounds for the variation of an undertaking given to the Court. In the absence of any satisfactory explanation of their dealings with Mr Tomlinson, he submitted that TNL were not in a position to make out a good case. The reaction of Eady J to this argument appears at page 6 of the judgment:

"I am unable to come to any conclusion as to whether Mr Crow's submissions are in fact well founded. I must, therefore, take the Sunday Times application at face value."

15. A little later he said:

"I cannot assume, as Mr Crow invites me to do, that what the Sunday Times are actually trying to do is to steal a march on their rivals so as to be first in the field."

16. I cannot see that there is anything objectionable in a newspaper trying to obtain a scoop ahead of its rivals, provided it acts with propriety in doing so. It would, however, plainly have been objectionable for TNL to procure publication by others abroad of that which they had undertaken not to publish themselves in order to found an application to be released from their undertaking.
17. Before us, Mr Tugendhat QC, for TNL, reacted to the suggestion that his clients had been guilty of such conduct with indignation. He submitted that it appeared to amount to an unwarranted attempt to get TNL to disclose their sources. However, the eve of the hearing before us TNL had served a witness statement from Nicholas Fielding, a senior reporter on The Sunday Times, which explained in detail the limited nature of TNL's continued relationship with Mr Tomlinson. In the light of this, Mr Crow withdrew any suggestion that TNL had acted with impropriety. He also withdrew all objection, in principle, to the grant of permission to TNL to make an appropriate variation to their undertaking. The only remaining issue was as to the appropriate terms of the variation. This in fact resolved into two separate issues.
18. The first issue was the formulation of the test of the degree of publicity which would have to occur before TNL could be permitted to republish matter that had already been published elsewhere. There was no dispute between the parties that, so far as the book was concerned, the proposed publication described by Mr Korovin would, if it took place, suffice. But what words should be used by way of general formula to describe the sufficiency of publication, not merely in the present circumstances, but in any other circumstances which might arise in the future?
19. The legal principles that the test should reflect were not in issue. They were established by the well-known case of Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 ("Spycatcher"). They can be summarised as follows.
20. A right to restrain the publication of information, however damaging that information may be, must be founded on a claim that disclosure of the information will constitute an actionable breach of confidence. No such action will lie once the information has been published elsewhere to such a degree that it is no longer confidential. In Spycatcher the information, publication of which the Attorney General sought to restrain, had received widespread publication abroad. It was described by the House of Lords as "world wide dissemination". The House of Lords found that, in these circumstances, publication in the United Kingdom would not bring about any significant damage to the public interest beyond that which had already occurred. Thus, there was no justification for restraining such publication (see, for example, the speech of Lord Keith of Kinkel at page 259). Having regard to the widespread publicity that had occurred, there was no need in Spycatcher to attempt to identify a formula that would suffice to describe the point at which publication destroys the confidentiality of information. A phrase that is often used to describe this point is that the publication has brought the information into the public domain.
21. The relevant term of the variation that was approved by Eady J was that the information:

"....has previously been published in any newspaper, publication, magazine or other publication generally accessible to the public at large, whether within or without the jurisdiction of the court."

22. The Attorney General objected to this formulation on the ground that publication might take place in some organ of the media that could be said to be generally accessible to the public, but in circumstances where it was so remote as to pass essentially unnoticed. In such circumstances, confidentiality would not have been destroyed. TNL, for their part, objected to the width of the alternative test proposed by the Attorney General, ie "publication has come to the widespread attention of the public at large". Such words were not apt to describe the proposed publication in Russia, although it was accepted that such publication would suffice to destroy the Attorney General's assertion of confidentiality in respect of the contents of the book.
23. Happily, in the course of argument before us, it became apparent that there was a formula that was satisfactory to both parties, subject to one important matter. The agreed variation altered the disputed terms of the undertaking so as to read as follows:

"A. Nothing in this undertaking prevents the Defendants or any of them from republishing anything which at the date of publication or intended publication by the Defendant or Defendants: ....

(ii) has previously been published in any other newspaper, magazine or other publication, whether within or outside the jurisdiction of the Court, to such an extent that the information is in the public domain (other than in a case where the only such publication was made by or was caused by the Defendants or any of them).

(iii) has previously been published by or through the internet or other electronic media to such an extent that the information is in the public domain (other than in a case where the only such publication was made by or was caused by the Defendants or any of them)."

24. There remains, however, a bone of contention, which is quite a big bone. That is the submission by the Attorney General that the relevant formula in the proviso should be preceded by the phrase:

".... where the Defendants can demonstrate that..."

25. This phrase was first introduced into the proposed formula by the Treasury Solicitor's letter of 13 November 2000. In the last paragraph of that letter, which I have previously quoted, he made it quite clear that he was not suggesting that the proposed formula would put TNL in breach of their undertaking if they had not, before publication, demonstrated to the Attorney General or to the Court that the matter to be published had entered the public domain. The phrase "the Defendants can demonstrate" seemed to do no more than attempt to place on TNL, should publication by them be challenged after it had taken place, the obligation to demonstrate that what they had published was in the public domain.
26. Before Eady J, and before us, Mr Crow took a different stance. He submitted that the proposed variation should, in effect, require TNL to get clearance from the Attorney General or the Court that anything they wished to publish was indeed in the public domain before they would be entitled to publish it. This had the effect of rendering the proposed variation nugatory. TNL would be little, if any, better off if they remained under an obligation to get clearance from the Attorney General or the Court before publishing.
27. Mr Tugendhat took strong objection to this proposal on a number of grounds.

1. He said he was taken by surprise by the Attorney General's change of stance which had come very late.

2. He submitted that the proposed fetter on TNL's right to publish was without precedence.

3. He submitted that the usual position, where there is an injunction or undertaking subject to a proviso affecting the press, is that it is for the editor to ensure that any condition in the proviso is satisfied. An editor who gets it wrong will be in contempt of Court and this will have serious implications. Editors should be trusted to be scrupulous in observing conditions to which they are subject under an order of the Court.

4. The requirement that the Attorney General sought to impose was impractical. How was the duty Judge to decide, when telephoned on Saturday on the eve of publication of The Sunday Times, whether a proposed publication had or had not come into the public domain as a result of prior publication?

5. Finally, Mr Tugendhat invoked Article 10 of the European Convention on Human Rights. He submitted that the clause proposed by the Attorney General would constitute an unjustified fetter on the right to freedom of expression to the detriment both of the newspaper, which had the right to impart information, and the public which had the right to receive it. He also relied upon section 12 of the Human Rights Act 1998, the material parts of which provide as follows:

"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

....

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-

(a) the extent to which-

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published."

28. Mr Tugendhat recognised that part 2 of Article 10 permits, in the circumstances there specified, restriction of the right to freedom of expression. But he submitted that the restriction proposed by the Attorney General was disproportionate and could not be justified in the public interest in a democratic society. In that context he referred to the decision of the European Court of Human Rights in the case of Bladet Tromso and Stensaas v Norway (20 May 1999) and in particular to this passage from paragraph 62 of the judgment of the court:

"It should further be recalled that Article 10 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 (see Handyside v The United Kingdom judgment of 7 December 1976). Moreover, whilst the mass media must not overstep the bounds imposed in the interests of the protection of private individuals, it is incumbent on them to impart information and ideas concerning matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Consequently, in order to determine whether the interference was based on sufficient reasons which rendered it 'necessary', regard must be had to the public-interest aspect of the case."

29. Eady J was impressed by the arguments of Mr Tugendhat. The passages of his judgment relevant to the issue before this Court are as follows (page 11):

"I wish to make one thing very clear about the decision I am about to make. It is not at all based on any argument to the effect that what the Sunday Times wishes to do is in the public interest. I see no evidence of that whatever. The situation is simply the other way about. It is in practical terms for the Attorney General to demonstrate, particularly perhaps in the light of the European Convention, that any restriction on freedom of expression sought to be imposed, or continued, can itself by justified by some countervailing and substantial public interest. In the light of what is today going to be readily available in the public domain in Russia, the United States and elsewhere in the world, I am afraid I am not persuaded that the public interest requires the Sunday Times to be restricted, for reasons based on a duty of confidence, to any greater extent than any other organ of the media. In any event, the original provisos of the 1996 order were aimed at excluding from the undertaking any information in the public domain. It is just that the wording was not, as both parties seem at some stages to have recognised, entirely satisfactory. It seems to be arbitrarily narrow by being confined to what other newspapers publish."

30. At page 14 the Judge said:

"....it might appear to the casual observer that the Sunday Times is keen to jump the gun for commercial reasons, on the footing that the material is about to enter the public domain, and to publish on Sunday, however widespread or not the publication of the book may by then have become. I am assured by Mr Tugendhat in clear terms that this is not their intention. He has made it clear that the editor wishes to make his judgment in the light of the circumstances prevailing tomorrow, and under no greater inhibition than any other editor in a similar position."

31. At page 18, in summarising the situation, the Judge said:

"....all that is in issue here before me today, important though it is, is the question of whether or not the Sunday Times should be placed on the same footing as other media organisations or continue in the somewhat artificial position in which they now find themselves for purely historical reasons."

32. Finally, at page 19 he concluded:

"....it is necessary for me to bear in mind, as was mentioned in argument, that an important part of freedom of expression is not only the freedom to publish what one wishes but the ability to publish it when one wishes to do so.

Once the information does enter the public domain, it seems to me to be artificial for the law to treat the Sunday Times on any different basis from any other paper and I will, therefore, make the variation in the proviso sought in the Sunday Times' application."

33. Mr Crow attacked the reasoning of the Judge. He submitted that TNL should be treated differently from other newspapers; they were necessarily in a different position. Proceedings had been brought against them and they had given an undertaking. Having in the past, at least on the Attorney General's case, acted in such a way to attract a special restriction on publication, there was no reason why a distinction between their position and that of other newspapers should not be continued.
34. I think it is desirable that there should usually be consultation between a newspaper and representatives of the SIS before the newspaper publishes information that may include matters capable of damaging the Service or endangering those who serve in it. I understand from Mr Tugendhat that such consultation takes place. I would hope and expect that it does. I do not, however, think it right to impose on TNL the requirement that they should seek confirmation from the Attorney General or the Court that facts that they intend to republish have been sufficiently brought into the public domain by prior publication so as to remove from them the cloak of confidentiality. That is a matter on which an editor will be in a position to form his own judgment and he should be left responsible for exercising that judgment. That is consonant with Article 10 of the European Convention on Human Rights and section 12 of the Act. It also avoids the procedural problems raised by Mr Tugendhat, which seem to me to be very real potential problems.
35. The terms of the agreed variation, excluding the additional condition that the Attorney General sought to insert, will impose on TNL a duty to the Court to comply with the law of confidentiality, and render TNL subject to the sanctions that exist for contempt of Court should they do not do so. I agree with Eady J that it is not appropriate that TNL should be subject to a fetter on the freedom of expression that goes beyond this.
36. Subject to amending TNL's undertaking to substitute the wording that has been agreed, I dismiss this appeal.
37. LORD JUSTICE TUCKEY: I agree.
38. LORD JUSTICE LONGMORE: I agree also.
Order: Appeal dismissed with costs of the appeal to be paid forthwith. (Order does not form part of approved judgment)