Sunday Times v United Kingdom (A/30) (No 1)

• Date: 06 November 1980
• Court: European Court of Human Rights

Sunday Times Case

(Balladore Pallieri, President; Wiarda, Mosler, Zekia, Cremona, O'Donoghue, Mrs Pedersen, Viljàlmsson, Ryssdal, Ganshof van der Meersch, Sir Gerald Fitzmaurice, Mrs Bindschedler-Robert, Evrigenis, Teitgen, Lagergren, Liesch, Gölcüklü, Matscher, Pinheiro Farinha and Garcia de Enterria, Judges)

European Court of Human Rights.

The individual in international law — Human rights and freedoms — European Convention for Protection of — Freedom of expression — Restriction imposed by contempt of court proceedings on Applicants' desire to publish information and comment on aspects of the drug thalidomide and its noxious and deforming effects — Whether restriction justifiable — Article 10

Whether Court had jurisdiction to consider not only English court injunction but also alleged continuing restraints caused by supposed overbreadth and lack of precision of English law of contempt — Jurisdiction limited to matters lodged with and accepted by the Commission

Question whether the interference with freedom of expression was ‘prescribed by law’—‘Law’ comprehends both legislation and ‘unwritten’ law — Interpretation of a law-making treaty whose equally authentic versions are not exactly the same — Law must be adequately accessible and formulated with sufficient precision for citizen to regulate his conduct — Despite measure of uncertainty in English law and divergent approaches thereto of English courts it was reasonably foreseeable that publication might fall foul of contempt law

Whether interference had aims which were legitimate under Article 10 (2) — Aim of maintaining the ‘authority of the judiciary’— This phrase comprises the machinery of justice as well as the judges in their official capacity

Question whether interference was ‘necessary in a democratic society’ for maintaining the authority of the judiciary — Meaning of ‘necessary’—’Margin of appreciation’ afforded to Governmental authorities — Supervisory power not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith — Scope of domestic power of appreciation not identical as regards each aim listed in Article 10(2) — Contrast in that regard between Handyside case as to the aim of ‘protection of morals’ and that before the Court — Authority of the judiciary a more objective notion — More extensive European supervision — International standards do not mean uniformity — Question whether Governmental action regarding the injunction corresponded to a ‘pressing social need’— Breadth of scope of the injunction — Nature of the proposed newspaper article — Overall context of the proposed publication — Discharge of injunction in 1976 — Questions prompted thereby — Need to balance public interest at large with the requirements of the fair administration of justice — Article 10 guarantees not only freedom of the press to inform the public but also the right of the public to be properly informed — Restraint not proportionate to the legitimate aim pursued

Non-discrimination in respect of secured rights — No evidence of discrimination — Article 14

Improper use of restrictions — Issue not pursued — Article 18

Just satisfaction — Question not ready for decision — Article 50

Summary 1: The facts:—Between 1958 and 1961 the Distillers Company manufactured and marketed certain drugs containing the ingredient thalidomide. They were prescribed as sedatives for, in particular, pregnant women. In 1961 and thereafter approximately 450 women who had been prescribed the drug gave birth to babies suffering severe deformities. All the relevant drugs were withdrawn from the British market in November 1961. Writs alleging negligence and claiming damages were issued on behalf of the parents of some of the affected children. A number of such claims was settled in 1968. By 1971, however, a further 389 claims in all were pending against Distillers. One statement of claim and one defence had been issued in 1969; no further steps regarding litigation had been taken. Had any of the actions come on for hearing they would have been tried by a judge without a jury. It was generally accepted that complex questions of law would have been involved. In 1971 negotiations were commenced to establish a trust fund on the part of Distillers for the children. By September 1972 a settlement involving a £3.25 million fund had been worked out. Some of the affected parents had not agreed to these terms.

From 1967 onwards reports concerning the deformed children had been published by the Sunday Times newspaper. Other reports and comments had occurred elsewhere in the press. On 24 September 1972 the Sunday Times carried an article examining the settlement proposals, describing them as ‘grotesquely out of proportion to the injuries suffered’, criticising various aspects of English law on the recovery and assessment of damages in personal injury cases, complaining of the delay, and urging Distillers to make a better offer. The article stated that in a subsequent issue the

newspaper would trace how the tragedy occurred. On 17 November 1972 the Attorney-General obtained an injunction against publication of this second article on the ground that it would constitute contempt of court. Other publicity was given to the situation of the children and the proposed settlement, though some proposed presentations in the various news media were cancelled in consequence of the injunction obtained against the Sunday Times. A further action against a television company, however, failed, on the ground that it had not been shown that there was a ‘serious risk’ of interference with the course of justice. The previous Sunday Times proceedings were distinguished on the ground that in these it had been proved that the editor was deliberately seeking to persuade Distillers to pay more. On 29 November 1972 a House of Commons debate was permitted on the subject on a motion calling, inter alia, on Distillers to face up to their responsibilities. The House of Commons concluded by resolving, inter alia, that it was disturbed about the plight of these children and the delays attending the settlement, and contemplating the establishment, once the matter was no longer sub judice, of a trust fund for the children. This debate was followed by a further wave of publications and a nationwide campaign urging Distillers to make a better offer. It included threats to establish a boycott of Distillers' other products. Press articles in newspapers other than the Sunday Times referred to many of the same test and research results as had the unpublished Sunday Times article which had been the subject of the injunction. No further contempt proceedings were instituted. Distillers revised its offer of the sum to be made available for the trust fund to £20 million. A settlement was judicially approved in July 1973 which also covered those children whose parents had settled out of court in 1968. Some parents declined to accept this settlement; their cases remained sub judice.

The Sunday Times, in the meanwhile, appealed to the Court of Appeal in respect of the injunction. The Court of Appeal on 16 February 1973 discharged it. It was, however, restored in modified form on 24 August 1973 following a decision by the House of Lords on 18 July allowing a further appeal by the Attorney-General. On his application, the injunction was finally discontinued on 23 June 1976. On 27 June 1976 the article was published, differing in certain respects from the original. On this date litigation was still pending in regard to some of the original claims, as were actions between Distillers and their insurers also involving the issue of negligence.

Paragraph 17 of the judgment of the Court of Human Rights summarises the article which was the subject of the injunction. It expressed the view that the marketing of the drug had left much to be desired. It concluded by setting out what might be argued on either side of the question as to whether Distillers should have behaved differently in regard to the sale of the product; the final sentence reading: ‘there appears to be no neat set of answers …’. At paragraphs 18 to 37 of the judgment the Court summarised aspects of the domestic law of contempt of court. It summarised the proceedings in the Queen's Bench Division, Court of Appeal and House of Lords, and referred to proposals for the reform of the law, principally in the report of the Phillimore Committee (December 1974). These proposals remained unimplemented at the time of the Court's judgment, but had been the subject of an official ‘Green Paper’, designed to provide a basis for public discussion, which had been published in March 1978. The decision of the Queen's Bench Division of 17 November 1972 had, in brief, focussed upon the issue whether publication might have prejudiced the free choice and conduct of parties to pending litigation. Comment raising a serious risk of interference with such proceedings should be withheld until they were terminated. The contentious article contained a deliberate attempt to influence the settlement of pending proceedings. It was not for the court to seek to balance the competing interests of the protection of the administration of justice on the other hand, and the right of the public to be informed on the other. On 16 February the Court of Appeal had discharged the injunction. Its judgment had especially emphasised that the litigation in question was dormant and not being actively pursued. Other points made by one or other of the three judges of the Court of Appeal were that, in the circumstances, the pressure the article was intended to bring was legitimate; that it would be discriminatory to continue to enjoin the Sunday Times in view of all the other publications and the Parliamentary proceedings; that in the circumstances the continuance of the injunction was ‘unreal’; and that the public interest in freedom of speech on a matter of great public moment had to be...