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