The Sunday Times v United Kingdom (Series A No 30), European Court of Human Rights (1979-80) 2 EHRR 245, 26 APRIL 1979

FACTS:

Distillers had marketed a drug, 'thalidomide', which had been taken by a number of pregnant women who later gave birth to deformed children. Writs were issued by the parents and a lengthy period of negotiations followed without the cases proceeding to trial. A weekly newspaper, The Sunday Times, began a series of articles with the aim of assisting the parents in obtaining a more generous settlement of their actions. One proposed article was to deal with the history of the testing, manufacture and marketing of the drug, but the Attorney-General obtained an injunction restraining publication of the article on the ground that it would constitute a contempt of court. The injunction had been granted in the High Court, rescinded by the Court of Appeal but restored by the House of Lords.

The publisher, editor and a group of journalists of The Sunday Times filed an application with the European Commission of Human Rights claiming that the injunction infringed their right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The Commission, by a majority, concluded that there had been a breach of Article 10 and referred the case to the Court.

Held, by the plenary Court by 11 votes to 9, that the interference with the applicants' freedom of expression was not justified under Article 10(2) which permits such restrictions 'as are prescribed by law and are necessary in a democratic society . . . for maintaining the authority and impartiality of the judiciary', the Court deciding that, though prescribed by law and for the purpose of maintaining the authority of the judiciary, the restriction was not justified by a 'pressing social need' and could not therefore be regarded as 'necessary' within the meaning of Article 10(2). Accordingly, there had been a violation of Article 10.

Contempt of court. Injunction restraining newspaper article discussing substance of pending litigation. Right to freedom of expression: Article 10 (1). Whether restriction 'prescribed by law and . . . necessary in a democratic society . . . for maintaining the authority and impartiality of the judiciary': Article 10 (2).

l. (a) The word 'law' in the expression 'prescribed by law' covered unwritten law as well as statute law, since to hold otherwise would deprive a common law State of the protection of Article 10 (2).

(b) Two of the requirements that flow from the expression 'prescribed by law' are (i) that the law must be adequately accessible, i.e. the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case; and (ii) that a norm cannot be regarded as 'law' unless formulated with sufficient precision to enable the citizen to regulate his conduct.

(c) Of the two principles relied on to justify the intervention of the contempt law in the case, one, the so-called 'pressure principle' -- the principle that a deliberate attempt to influence the settlement of pending proceedings by bringing public pressure to bear on one of the parties constituted contempt -- was formulated with sufficient precision in English Law.

(d) The second principle, the so-called 'prejudgment principle' -- the principle that it was contempt to publish material which prejudged the issues raised in pending litigation -- was also formulated at the relevant time that the applicants were able to foresee to a reasonable degree that their draft article might constitute contempt on this ground.

(e) Accordingly, the interference with the applicants' freedom of expression was 'prescribed by law' within the meaning of Article 10 (2).

2. (a) In the expression 'maintaining the authority and impartiality of the judiciary', the term 'judiciary' comprised the machinery of justice or the judicial branch of government as well as the judges in their official capacity; and the phrase 'authority of the judiciary' included the notions that the courts were the proper forum for ascertaining legal rights and obligations and settling disputes and that the public had respect for and confidence in the courts' capacity to fulfill that function, the maintenance of which was one of the purposes of the law of contempt.

(b) The reasons why the draft article was regarded as objectionable by the House of Lords all fell within the aim of maintaining the authority of the judiciary, so that the interference with the applicants' freedom of expression had an aim that was legitimate under Article 10 (2).

3. (a) In the expression 'necessary in a democratic society', the word 'necessary' was not synonymous with 'indispensable', neither had it the flexibility of such expressions as 'inadmissible', 'ordinary', 'useful', 'reasonable' or 'desirable', but it implied the existence of a pressing social need.

(b) Article 10 (2) left to States a margin of appreciation, given both to legislators and to bodies call upon to interpret and apply the laws in force, but that power was not unlimited the Court having the final ruling on whether a restriction was reconcilable with Article 10.

(c) The Court's supervision was not limited merely to ascertaining whether a State exercised its discretion reasonably, carefully and in good faith.

(d) The scope of the domestic power of appreciation was not identical as regards each of the aims listed in Article 10 (2), so that while State authorities were, for example, in a better position to determine a question as to the 'protection of morals', the same could not be said of the far more objective notion of the 'authority . . . of the judiciary', resulting in a more extensive European supervision and correspondingly less discretionary power of appreciation.

(e) Although contempt of court was peculiar to common law countries and the concluding words of Article 10 (2) might have been designed to cover such a concept, the words provided only that the general aims of the contempt law should be considered legitimate, not every detail of them, so that the test of 'necessity' still fell to be applied in a particular case.

(f) It could not be concluded that the injunction was 'unnecessary' simply because it could or would not have been granted under a different legal system: the Convention did not require absolute uniformity and States remained free to choose the measures which they considered appropriate.

(g) It was necessary to decide whether the 'interference' complained of corresponded to a 'pressing social need', whether it was 'proportionate to the legitimate aim pursued', and whether the reasons given by the national authorities to justify it were 'relevant and sufficient under Article 10 (2)'.

(h) Publication of the article would not have added much to the pressure already on Distillers to settle out of court on better terms.

(i) Since the proposed article was couched in moderate terms and did not present just one side of the evidence, its publication would not have had adverse consequences for the 'authority of the judiciary'.

(j) The Courts could not operate in a vacuum: while they were the forum for settling disputes, this did not mean that there could be no prior discussion of disputes elsewhere, It was incumbent on the mass media to impart information and ideas concerning matters that came before the courts just as in other areas of public interest.

(k) It was not sufficient that the interference belonged to that class of exceptions listed in Article 10 (2), nor that it was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms, but the Court had to be satisfied that it was necessary having regard to the facts and circumstances of the specific case.

(l) The thalidomide disaster was a matter of undisputed public concern and Article 10 guaranteed not only the freedom of the press but also the right of the public to be properly informed.

(m) The families of numerous victims of the tragedy had a vital interest in knowing all the underlying facts, which could be denied them only if it appeared absolutely certain that their diffusion would have presented a threat to the 'authority of the judiciary'.

(n) In view of all the circumstances, the interference did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression; the reasons for the restraint were not therefore sufficient under Article 10 (2); it was not proportionate to the legitimate aim pursued; and it was not necessary in a democratic society for maintaining the authority of the judiciary. Accordingly, Article 10 had been violated.

No injunction sought against other newspapers. Different rules governing debate in Parliament on sub judice matters. Whether discrimination in enjoyment of rights and freedoms contrary to Article 14. Whether violation of Article 10 taken in conjunction with Article 14.

4. (a) Article 14 safeguarded individuals, or groups of individuals, placed in comparable situations, from all discrimination in the enjoyment of the rights and freedoms set forth in the Convention.

(b) Failure to take steps against other newspapers was not sufficient evidence that the injunction against The Sunday Times constituted discrimination contrary to Article 14.

(c) The press and Parliament were not 'placed in comparable situations', since their respective 'duties and responsibilities' were essentially different.

(d) There was thus no violation of Article l4 taken together with Article 10.

 European Court of Human Rights

l. BELGIAN LINQUISTIC CASE (PRELIMINARY OBJECTION), 1967, Series A, No 5.
2. BELGIAN LINGUISTIC CASE (MERITS), 1968, Series A, No 6.
3. GOLDER v UK, 1975, Series A, No 18.
4. HANDYSIDE v UK, 1976, Series A, No 24.
5. IRELAND v UK, 1978, Series A, No 25; 2 EHRR 25.
6. KJELDSEN, BUSK MADSEN AND PEDERSEN v DENMARK, 1976, Series A, No 23.
7. KLASS v FEDERAL REPUBLIC OF GERMANY, 1978, Series A, No 28; 2 EHRR 214.
8. KONIG v FEDERAL REPUBLIC OF GERMANY, 1978, Series A, No 27; 2 EHRR 170.
9. NATIONAL UNION OF BELGIAN POLICE v BELGIUM, 1975, Series A, No 19.
10. NEUMEISTER v AUSTRIA, 1968, Series A, No 8.
11. RINGEISEN v AUSTRIA, 1971, Series A, No 13.
12. STOGMULLER v AUSTRIA, 1969, Series A, No 9.
13. WEMHOFF v FEDERAL PUBLIC OF GERMANY, 1968, Series A, No 7.

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