Sunday Times v United Kingdom (1979) 2 EHRR 245
A. Was the interference 'prescribed by law '?
46. The applicants argue, inter alia, that the law of contempt of court, both before and after the decision of the House of Lords, was so vague and uncertain and the principles enunciated by that decision so novel that the restraint imposed cannot be regarded as 'prescribed by law'. The Government maintain that it suffices, in this context, that the restraint was in accordance with the law; they plead, in the alternative, that on the facts of the case the restraint was at least 'roughly foreseeable'. This latter test had been referred to by the Commission in its report, although there it merely proceeded on the assumption that the principles applied by the House of Lords were 'prescribed by law'. However, at the hearing on 25 April 1978, the Commission's Principal Delegate added that, in view of the uncertainties of the law, the restraint was not 'prescribed by law ', at least when the injunction was first granted in 1972.
47. The Court observes that the word 'law' in the expression prescribed by law ' covers not only statute but also unwritten law. Accordingly, the Court does not attach importance here to the fact that contempt of court is a creature of the common law and not of legislation. It would clearly be contrary to the intention of the drafters of the Convention to hold that a restriction imposed by virtue of the common law is not 'prescribed by law ' on the sole ground that it is not enunciated in legislation: this would deprive a common law State which is Party to the Convention of the protection of Article 10 (2) and strike at the very roots of that State's legal system.
In fact, the applicants do not argue that the expression 'prescribed by law ' necessitates legislation in every case; their submission is that legislation is required only if - as in the present case - the common law rules are so uncertain that they do not satisfy what the applicants maintain is the concept enshrined in that expression, namely, the principle of legal certainty....
49. In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.
50. In the present case, the question whether these requirements of accessibility and foreseeability were satisfied is complicated by the fact that different principles were relied on by the various Law Lords concerned. The Divisional Court had applied the principle that a deliberate attempt to influence the settlement of pending proceedings by bringing public pressure to bear on a party constitutes contempt of court (the 'pressure principle';...). Certain members of the House of Lords also alluded to this principle, whereas others preferred the principle that it is contempt of court to publish material which prejudges, or is likely to cause public prejudgment of, the issues raised in pending litigation (the prejudgment principle);....
51. The applicants do not claim to have been without an indication that was adequate in the circumstances of the 'pressure principle '. Indeed, the existence of this principle had been recognised by counsel for Times Newspapers Ltd...
The Court also considers that there can be no doubt that the pressure principle was formulated with sufficient precision to enable the applicants to foresee to the appropriate degree the consequences which publication of the draft article might entail....
52. The applicants contend, on the other hand, that the prejudgment principle was novel and that they therefore could not have had an adequate indication of its existence. Support for this view is to be found in several authorities cited by the applicants, including the Phillimore report, which stated that the House of Lords 'formulated a rather different test'.... Nevertheless, the Court has also noted the following:
in the applicants' memorial, it is submitted (para. 2.54): the "prejudgment principle" as applied by the House of Lords to the facts of the present case has never before constituted the ratio of an English judicial decision in a comparable case' (emphasis added);
in 1969, the Interdepartmental Committee on the Law of Contempt as it affects Tribunals of Inquiry... stated in paragraph 26 of its report: "There is no reported case or anyone being found guilty of contempt of court in respect of comment made about the subject matter of a trial before a judge alone. . . . There are however dicta which support the view that such comment may amount to contempt";
the third edition (current in 1972) of Halsbury's Lawsof England contains the following passages which are accompanied by references to previous case law:
.. writings... prejudicing the public for or against a party are contempts...there [is nothing] of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes before the cause is finally heard....
To sum up, the Court does not consider that the applicants were without an indication that was adequate in the circumstances of the existence of the ' prejudgment principle '. Even if the Court does have certain doubts concerning the precision with which that principle was formulated at the relevant time, it considers that the applicants were able to foresee, to a degree that was reasonable in the circumstances, a risk that publication of the draft article might fall foul of the principle.
53. The interference with the applicants' freedom of expression was thus 'prescribed by law'.....
B. Did the interference have aims that are legitimate under Article 10(2)?.....
56. In the present case, the Court shares the view of the majority of the Commission that, in so far as the law of contempt may serve to protect the rights of litigants, this purpose is already included in the phrase ' maintaining the authority and impartiality of the judiciary ': the rights so protected are the rights of individuals in their capacity as litigants, that is, as persons involved in the machinery of justice, and the authority of that machinery will not be maintained unless protection is afforded to all& those involved in or having recourse to it. It is therefore not necessary to consider as a separate issue whether the law of contempt has the further purpose of safeguarding ' the rights of others
57. It remains to be examined whether the aim of the interference with the applicants' freedom of expression was the maintenance of the authority and impartiality of the judiciary.
None of the Law Lords concerned based his decision on the ground that the proposed article might have an influence on the 'impartiality' of the judiciary. This ground was also not pleaded before the Court and can be left out of account.
The reasons why the draft article was regarded as objectionable by the House of Lords...) may be briefly summarised as follows:
by 'prejudging' the issue of negligence, it would have led to disrespect for the processes of the law or interfered with the administration of justice; it was of a kind that would expose Distillers to public and prejudicial discussion of the merits of their case, such exposure being objectionable as it inhibits suitors generally from having recourse to the courts;
it would subject Distillers to pressure and to the prejudices of prejudgment of the issues in the litigation, and the law of contempt was designed to prevent interference with recourse to the courts;
prejudgment by the press would have led inevitably in this case to replies by the parties, thereby creating the danger of a 'trial by newspaper' incompatible with the proper administration of justice;
the courts owe it to the parties to protect them from the prejudices of prejudgment which involves their having to participate in the flurries of pre-trial publicity.
The Court regards all these various reasons as falling within the aim of maintaining the 'authority... of the judiciary'.....
Accordingly, the interference with the applicants' freedom of expression had an aim that is legitimate under Article 10 (2).
C.Was the interference 'necessary in a democratic society' for maintaining the authority of the judiciary?
58. The applicants submit and the majority of the Commission are of the opinion that the said interference was not 'necessary' within the meaning of Article 10 (2). The Government contend that the minority of the Commission was correct in reaching a contrary conclusion and rely, in particular, on the margin of appreciation enjoyed by the House of Lords in the matter.
59. The Court has already had the occasion in its above mentioned HANDYSIDE judgment to state its understanding of the phrase 'necessary in a democratic society', the nature of its functions in the examination of issues turning on that phrase and the manner in which it will perform those functions.
The Court has noted that, whilst the adjective ' necessary ', within the meaning of Article 10 (2), is not synonymous with 'indispensable' neither has it the flexibility of such expressions as 'admissible' 'ordinary','useful', 'reasonable' or 'desirable ' and that it implies the existence of a 'pressing social need'.
In the second place, the Court has underlined that the initial responsibility for securing the rights and freedoms enshrined in the Convention lies with the individual Contracting States. Accordingly, 'Article 10 (2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force'.
Nevertheless, Article 10 (2) does not give the Contracting States an unlimited power of appreciation. 'The Court...is empowered to give the final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision which covers not only the basic legislation but also the decision applying it, even one given by an independent court'.
The Court has deduced from a combination of these principles that 'it is in no way [its] task to take the place of the competent national courts but rather to review under Article 10 the decisions they delivered in the exercise of their power of appreciation'.
This does not mean that the Court's supervision is limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. Even a Contracting State so acting remains subject to the Court's control as regards the compatibility of its conduct with the engagements it has undertaken under the Convention. The Court still does not subscribe to the contrary view which, in essence, was advanced by the Government and the majority of the Commission in the HANDYSIDE CASE.
Again, the scope of the domestic power of appreciation is not identical as regards each of the aims listed in Article 10 (2). The HANDYSIDE CASE concerned the 'protection of morals'. The view taken by the Contracting States of the 'requirements of morals', observed the Court, 'varies from time to time and from place to place, especially in our era', and 'State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements'. Precisely the same cannot be said of the far more objective notion of the 'authority ' of the judiciary. The domestic law and practice of the Contracting States reveal a fairly substantial measure of common-ground in this area. This is reflected in a number of provisions of the Convention, including Article 6, which have no equivalent as far as 'morals' are concerned. Accordingly, here a more extensive European supervision corresponds to a less discretionary power of appreciation....
60.....In addition, the Court exercises its supervision in the light of the case as a whole." Accordingly, it must not lose sight of the existence of a variety of reasoning and solutions in the judicial decisions summarised...above, of extensive debates in England on the law of contempt of court and of proposals for reform....
61. Again, the Court cannot hold that the injunction was not 'necessary ' simply because it could or would not have been granted under a different legal system. As noted in the BELGIAN LINGUISTICS CASE, the main purpose of the Convention is 'to lay down certain international standards to be observed by the Contracting States in their relations with persons under their jurisdiction. This does not mean that absolute uniformity is required and, indeed, since the Contracting States remain free to choose the measures which they consider appropriate, the Court cannot be oblivious of the substantive or procedural features of their respective domestic laws."
62. It must now be decided whether the 'interference ' complained of corresponded to a 'pressing social need ', whether it was proportionate to the legitimate aim pursued', whether the reasons given by the national authorities to justify it are 'relevant and sufficient under Article 10(2). In this connection, the Court has examined the subject matter of the injunction, then the state of the thalidomide case at the relevant time and, finally, the circumstances surrounding that case and the grant of the injunction.
63. The injunction, in the form ordered by the House of Lords, was not directed against the draft Sunday Times article alone.... The applicants allege that it also prevented them from passing the results of their research to certain Government committees and to a Member of Parliament and from continuing their research, delayed plans for publishing a book and debarred the editor of The Sunday Times from commenting on the matter or replying to criticism aimed at him. In fact, the injunction was couched in terms wide enough to cover such items; its very breadth calls for a particularly close scrutiny of its 'necessity '.
The draft article was nonetheless the principal subject-matter of the injunction. It must therefore be ascertained in the first place whether the domestic courts' views as to the article's potential effects were relevant in terms of the maintenance of the 'authority of the judiciary '.
One of the reasons relied on was the pressure which the article would have brought to bear on Distillers to settle the actions out of court on better terms. However, even in 1972, publication of the article would probably not have added much to the pressure already on Distillers.... This applies with greater force to the position obtaining in July 1973, when the House of Lords gave its decision: by that date, the thalidomide case had been debated in Parliament and had been the subject not only of further press comment but also of a nationwide campaign....
The speeches in the House of Lords emphasised above all the concern that the processes of the law may be brought into disrespect and the functions of the courts usurped either if the public is led to form an opinion on the subject-matter of litigation before adjudication by the courts or if the parties to litigation have to undergo 'trial by newspaper'. Such concern is in itself 'relevant' to the maintenance of the 'authority of the judiciary' as that, expression is understood by the Court.... If the issues arising in litigation are ventilated in such a way as to lead the public to form its own conclusion thereon in advance, it may lose its respect for and confidence in the courts. Again, it cannot be excluded that the public's becoming accustomed to the regular spectacle of pseudotrials in the news media might in the long run have nefarious consequences for the acceptance of the courts as the proper forum for the settlement of legal disputes.
Nevertheless, the proposed Sunday Times article was couched in moderate terms and did not present just one side of the evidence or claim that there was only one possible result at which a court could arrive; although it analysed in detail evidence against Distillers, it also summarised arguments in their favour and closed with the words: 'There appears to be no neat set of answers....'. In the Court's opinion, the effect of the article, if published, would therefore have varied from reader to reader. Accordingly, even to the extent that the article might have led some readers to form an opinion on the negligence issue, this would not have had adverse consequences for the 'authority of the judiciary', especially since, as noted above, there had been a nationwide campaign in the meantime.
On the other hand, publication of the proposed article might well have provoked replies. However, the same is true, to a greater or lesser extent, of any publication that refers to the facts underlying or the issues arising in litigation. As items in that category do not inevitably impinae on the 'authority of the judiciary', the Convention cannot have been intended to permit the banning of all of them. Moreover, although this particular reason for the injunction might possibly have been ' relevant ' under Article 10 (2), the Court cannot decide whether it was ' sufficient ' without examining all the surrounding circumstances.
64. At the time when the injunction was originally granted and at the time of its restoration, the thalidomide case was at the stage of settlement negotiations. The applicants concur with the Court of Appeal's view that the case was 'dormant' and the majority of the Commission considers it unlikely that there would have been a trial of the issue of negligence. For the Government and the minority of the Commission, on the other hand, such a trial was a real possibility.
An assessment of the precise status of the case during the relevant period is not needed for the Court's decision: preventing interference with negotiations towards the settlement of a pending suit is a no less legitimate aim under Article 10 (2) than preventing interference with a procedural situation in the strictly forensic sense..... What is to be retained is merely that the negotiations were very lengthy, continuing for several years, and that at the actual moment when publication of the article was restrained, the case had not reached the stage of trial.
Nevertheless, the question arises as to how it was possible to discharge the injunction in 1976. At that time, there were still outstanding not only some of the parents' actions but also an action between Distillers and their insurers involving the issue of negligence; the latter action, moreover, had been set down for trial....Discharge of the injunction in these circumstances prompts the question whether the injunction was necessary in the first place.
65. The Government's reply is that it is a matter of balancing the public interest in freedom of expression and the public interest in the fair administration of justice; they stress that the injunction was a temporary measure and say that the balance, on being struck again in 1976 when the situation had changed, fell on the other side.
This brings the Court to the circumstances surrounding the thalidomide case and the grant of the injunction.
As the Court remarked in its HANDYSIDE judgment, freedom of expression constitutes one of the essential foundations of a democratic society; subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.
These principles are of particular importance as far as the press is concerned. They are equally applicable to the field of the administration of justice, which serves the interests of the community at large and requires the co-operation of an enlightened public. There is general recognition of the fact that the courts cannot operate in a vacuum. Whilst they are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them.
To assess whether the interference complained of was based on sufficient reasons which rendered it 'necessary in a democratic society', account must thus be taken of any public interest aspect of the case. The Court observes in this connection that, following a balancing of the conflicting interests involved, an absolute rule was formulated by certain of the Law Lords to the effect that it was not permissible to prejudge issues in pending cases: it was considered that the law would be too uncertain if the balance were to be struck anew in each case..... Whilst emphasising that it is not its function to pronounce itself on an interpretation of English law adopted in the House of Lords, the Court points out that it has to take a different approach. The Court is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted. In the second place, the Court's supervision under Article 10 covers not only the basic legislation but also the decision applying it. It is not sufficient that the interference involved belongs to that class of the exceptions listed in Article 10 (2) which has been invoked; neither is it sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms: the Court has to be satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it.
66. The thalidomide disaster was a matter of undisputed public concern. It posed the question whether the powerful company which had marketed the drug bore legal or moral responsibility towards hundreds of individuals experiencing an appalling personal tragedy or whether the victims could demand or hope for indemnification only from the community as a whole; fundamental issues concerning protection against and compensation for injuries resulting from scientific developments were raised and many facets of the existing law on these subjects were called in question.
As the Court has already observed, Article 10 guarantees not only the freedom of the press to inform the public but also the right of the public to be properly informed (see para. 65 above).
In the present case, the families of numerous victims of the tragedy, who were unaware of the legal difficulties involved, had a vital interest in knowing all the underlying facts and the various possible solutions. They could be deprived of this information, which was crucially important for them, only if it appeared absolutely certain that its diffusion would have presented a threat to the authority of the judiciary.
Being called upon to weigh the interests involved and assess their respective force, the Court makes the following observations:
In September 1972, the case had, in the words of the applicants, been in a 'legal cocoon ' for several years and it was, at the very least, far from certain that the parents' actions would have come on for trial. There had also been no public enquiry....
The Government and the minority of the Commission point out that there was no prohibition on discussion of the 'wider issues' such as the principles of the English law of negligence, and indeed it is true that there had been extensive discussion in various circles especially after, but also before, the Divisional Court's initial decision.... However, the Court considers it rather artificial to ttempt to divide the 'wider issues ' and the negligence issue. The question of where responsibility for a tragedy of this kind actually lies is also a matter of public interest.
It is true that, if The Sunday Times article had appeared at the intended time, Distillers might have felt obliged to develop in public, and in advance of any trial, their arguments on the facts of the case...; however, those facts did not cease to be a matter of public interest merely because they formed the background to pending litigation. By bringing to light certain facts, the article might have served as a brake on speculative and unenlightened discussion.
67. Having regard to all the circumstances of the case and on the basis of the approach described in paragraph 65 above, the Court concludes that the interference complained of did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the Convention. The Court therefore finds the reasons for the restraint imposed on the applicants not to be sufficient under Article 10 (2). That restraint proves not to be proportionate to the legitimate aim pursued; it was not necessary in a democratic society for maintaining the authority of the judiciary.
68. There has accordingly been a violation of Article 10.