Application No. 14644/89
                      by TIMES NEWSPAPERS Ltd. and Andrew NEIL
                      against the United Kingdom

        The European Commission of Human Rights sitting in private
on 11 April 1991, the following members being present:

              MM. C.A. NØRGAARD, President
                  S. TRECHSEL
                  F. ERMACORA
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
             Mrs.  G. H. THUNE
             Sir  Basil HALL
             Mrs.  J. LIDDY
             MM.  L. LOUCAIDES
                  A.V. ALMEIDA RIBEIRO
                  M.P. PELLONPÄÄ

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 2 February 1989
by TIMES NEWSPAPERS Ltd. and Andrew NEIL against the United Kingdom
and registered on 15 February 1989 under file No. 14644/89;

        Having regard to:

-       reports provided for in Rule 47 of the Rules of Procedure
        of the Commission;

- ii -


-       the observations of the Government submitted on 19 April 1990;

-       the observations of the applicants submitted on 9 July 1990;

-       the parties' oral submissions at the hearing on 11 April 1991;

        Having deliberated;

        Decides as follows:


        The applicants are:

1.      Times Newspapers Ltd., publishers of The Sunday Times, a
national Sunday newspaper published in the United Kingdom;

2.      Andrew Ferguson Neil, editor of The Sunday Times, a British

        They are represented before the Commission by Messrs.  Theodore
Goddard, Solicitors, London.

A.      The particular facts of the case

        The full facts giving rise to this application are set out in
the Commission's Report adopted on 12 July 1990 in Application
No. 13166/87 brought by the same applicants against the United Kingdom.
The present case is an extension of that application.  There follows a
brief summary of the relevant facts which are not disputed by the

        Peter Wright, a former member of the British Security Service
MI5, sought to publish his memoirs in a book entitled "Spycatcher".
The book contained several allegations of misconduct on the part of
MI5.  Much of the material in the book had already been disclosed by
other authors or in television programmes, including a Granada
Television interview with Mr.  Wright in 1984.  "Spycatcher" was first
to be published in Australia in 1985 but the United Kingdom
Government, represented by the Attorney General, instituted
proceedings in the Australian courts to prevent publication.  In June
1986 the Observer and Guardian newspapers published short reports
about some of the allegations in the book.  The Attorney General
instituted proceedings against these newspapers for breach of
confidence in the Chancery Division of the High Court of Justice of
England and Wales.  Temporary injunctions restraining further such
reports were granted from 11 July 1986 until the matter was finally
decided on the merits by the House of Lords on 13 October 1988.

        Despite these injunctions the applicants sought to publish
serialised extracts from "Spycatcher" before it was published in the
United States of America (USA) on 14 July 1987.  The first extract was
published in The Sunday Times on 12 July 1987, the second applicant
having employed evasive tactics to circumvent any Government action to
restrain publication.  The extract was not put in the first edition of
the newspaper, but in the later editions.  Apparently The Sunday Times
sales of that day were slightly above average.  In order to prevent
the applicants publishing further extracts, the Attorney General
initiated two sets of proceedings, one for contempt of court, the
other for an injunction restraining further publication, which
proceedings led to the applicants being joined in the breach of
confidence suit against the Observer and Guardian newspapers.  The
Attorney General was seeking permanent injunctions against all three
newspapers to restrain the publication of any of the "Spycatcher"
material.  By a judgment of the House of Lords on 30 July 1987, the
applicants were bound to refrain from publication of further extracts
by virtue of the temporary injunctions which prevented publication of
further reports by the Observer and Guardian newspapers, pending the
outcome on the merits of the breach of confidence proceedings.

        The judgment on the merits at first instance, given by
Mr.  Justice Scott on 21 December 1987, exonerated the actions of the
Observer and Guardian Newspapers.  In contrast, however, Mr.  Justice
Scott found that The Sunday Times had been in breach of a duty of
confidence by publishing extracts from "Spycatcher" on 12 July 1987.
It was held that Mr.  Wright owed a duty of confidence towards the
Crown.  The applicants, being the recipients of unauthorised
disclosures of information by Mr.  Wright, were under the same duty of
confidence.  Mr.  Justice Scott said in his judgment:

        "The contents of the extracts published on 12 July 1987
        include a good deal of material that could not be
        represented as raising any issue on which the public
        should be invited to judge or in respect of which the
        public interest to be served by disclosure could be
        thought to outweigh the interests of national security."

        Accordingly, the indiscriminate publication represented a
breach of the duty owed by the applicants.  The Attorney General was
therefore entitled to an account and payment of profits made by The
Sunday Times out of the publication of those extracts.  Although the
extracts contained material which, if it had stood alone, The Sunday
Times would have been entitled to publish, the judge held that no
apportionment of any profit would be allowed in view of the deliberate
nature of the breach.  Mr.  Justice Scott concluded as follows:

        "The Sunday Times published the 'Spycatcher' extract well
        knowing that the Attorney General would, if he had wind of
        what was afoot, seek, and be likely to obtain, an
        interlocutory injunction restraining publication.  The Sunday
        Times published the service memoirs of an ex-officer of MI5
        indiscriminately.  The breach of duty was the publication
        of the extract as a whole.  An account of profits is an
        equitable remedy.  It does not follow as of course upon a
        breach of duty.  In the circumstances of this case, and
        particularly in view of The Sunday Times' endeavours to
        keep the Government in the dark and to prevent the court
        from adjudicating on the propriety of the publication until
        it was too late, The Sunday Times is in no position to argue
        against the equity of an order that it account for the profit,
        if any, made out of the publication."

        This decision was upheld by the Court of Appeal by a majority
on 10 February 1988.  Sir John Donaldson M.R., for the majority, held
that the applicants had behaved disreputably and irresponsibly in
order to serialise "Spycatcher" and escape Government attention.  The
Sunday Times was in a different position from the Observer and
Guardian newspapers because in serialising the book the applicants
stood in Mr.  Wright's shoes by virtue of a contract with and a licence
granted by his publishers; hence their breach of the duty of
confidence.  He noted that the whole object of The Sunday Times in
publishing the extract on 12 July 1987 was to get in ahead of the US
publication of the book for its own profit.

        Lord Justice Bingham dissented on the basis that it was then a
virtual certainty that widespread publication of the book in the USA
would almost immediately take place.  He commented, however, that
although it was virtually certain that widespread publication of the
book was imminent in the USA, it was not known at that stage whether
the United Kingdom Government would seek to prohibit import of the
book into the United Kingdom, how effective such a prohibition would
be, and that it would be fair to assume that the circulation of the
book in the United Kingdom might have been relatively small.

        Further appeal by the applicants to the House of Lords was
dismissed on 13 October 1988.  Lord Keith of Kinkel held as follows:

        "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 knew that the material was confidential
        in character and had not as a whole been previusly 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 ..."

        Lord Goff concurred as follows:

        "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

        The House of Lords therefore confirmed the order that the
applicants should account for their profits to the Attorney General
and decided that the applicants should pay the costs of this part of
the appeal.  However, it refused to grant any permanent injunctions
restraining the Observer or The Guardian from reporting on the
contents of the book or restraining The Sunday Times from serialising
further extracts from it because by that time "Spycatcher" was fully
in the public domain.

        To date the applicants have not accounted for their profits.

B.      The relevant domestic law

        An account of profits is a form of equitable relief, the
principle underlying which is that no one should be permitted to gain
from his own wrongdoing.  The nature of the equitable relief, and its
distinction from relief at law, are described in Halsbury's Laws of
England, 4th edition, volume 16, "Equity":

        "1297.  Principle of relief in equity.  The principle
        underlying relief at law is that the plaintiff has suffered
        loss by the defendant's breach of contract or wrongful
        conduct, and damages are awarded for the purpose of making
        good this loss.  The principle underlying relief in equity
        is that the defendant has improperly received or withheld
        property, or profits from property (such property or profits
        belonging to the plaintiff) and he is required to restore the
        property or to account for the profits.  Thus at law the
        extent of the remedy is measured by the loss to the plaintiff,
        which is covered by the damages awarded; in equity the extent
        of the remedy is measured by the gain to the defendant, which
        is ascertained by directing an account against him."

        The law relating to confidentiality and to the breach of a
duty of confidence was set out in the speeches in the House of Lords
in the present case and may be summarised as follows:

        (1)  The law has long recognised that an obligation of
             confidence can arise out of particular relationships.
             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 (per Lord Keith, at p. 781G-H;
             per Lord Griffiths, at p. 793E-F; per Lord Goff, at
             pp. 805H-806C).

        (2)  Three elements are normally required if, apart from
             contract, a case of breach of confidence is to succeed:
             the information itself must have the necessary quality of
             confidence about it; the information must have been
             imparted in circumstances importing an obligation of
             confidence; and there must be an unauthorised use of that
             information.  Although detriment or potential detriment
             to the plaintiff will mostly always form part of his
             case, this may not always be necessary (per Lord Keith,
             at pp. 781H-782F; per Lord Griffiths, at pp. 793F-794A;
             per Lord Goff, at pp. 805G-H, 806C-G).

        (3)  The Crown is in a special position in relation to the
             preservation of confidence; publication of information
             imparted in confidence by the Government or its
             predecessors will not be restrained by the grant of
             injunction unless it can additionally be shown that
             publication would be harmful to the public interest
             (per Lord Keith, at pp. 783D-785B; per Lord Griffiths,
             at p. 796A-C; per Lord Goff, at p. 807F-H).

        (4)  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 (per Lord Keith, at p. 786A-B; per Lord
             Griffiths, at p. 794A-C; per Lord Goff, at p. 806A-C).

        (5)  Information may lose its original confidential character
             if it subsequently enters the public domain, at least in
             a case where the confidential information is published by
             the "confider" rather than by the "confidant" or by a
             third party; information enters the public domain when it
             is so generally accessible that, in all the
             circumstances, it cannot be regarded as confidential (per
             Lord Griffiths, at pp. 793H-794A; per Lord Goff, at
             pp. 806G-H, 809E-810C).

        (6)  The general duty of confidence is subject to a further
             qualification, namely that the public interest that
             confidences should be preserved and protected by law
             may be outweighed by some countervailing public interest
             which favours disclosure: embraced within this limiting
             principle is the so called defence of "iniquity", where
             there exists a public interest in the disclosure of


        The applicants complain of violations of Articles 10, 13 and
14 of the Convention by virtue of the House of Lords judgment of
13 October 1988 ordering them to account for profits as well as costs.


        The application was introduced on 2 February 1989 and
registered on 15 February 1989.  After a preliminary examination of
the case by the Rapporteur, the Commission considered the
admissibility of the application on 4 December 1989.  It decided to
give notice of the application to the respondent Government and to
invite the parties to submit written observations on its admissibility
and merits.  The Government's observations were submitted, after an
extension of the time limit, on 19 April 1990.  The applicants'
observations in reply were submitted, after an extension of the time
limit, on 9 July 1990.

        On 5 October 1990 the Commission decided to hold a hearing on
the admissibility and merits of the application, pursuant to Article
50 para. b of its Rules of Procedure.  This hearing was held in
Strasbourg on 11 April 1991.  At the hearing the Government were
represented by their Agent, Mrs.  A. Glover, of the Foreign and
Commonwealth Office, Mr.  N. Bratza, QC, and Mr.  P. Havers, of counsel,
and Mr.  D. Brummell, Treasury Solicitors.  The applicants were
represented by Mr.  A. Lester, QC, and Mr.  D. Pannick, of counsel, and
Mr.  A. Whitaker, Legal Manager of Times Newspapers Ltd.


        The applicants complained that the judgment of the House of
Lords on 13 october 1988 ordering them to account for profits and
costs constituted a violation of Article 10 (Art. 10) of the
Convention, in particular, as well as a violation of Articles 13 and
14 (Art. 13, 14) of the Convention read in conjunction with Article 10
(Art. 10).

        They submitted, inter alia, that there had been an
interference with their freedom of expression, ensured by Article 10
(Art. 10) of the Convention, because the House of Lords judgment was a
finding that they had acted unlawfully, which finding in itself
amounted to a formality, penalty and interference under this provision
of the Convention; the orders to account for profits, as well as
costs, amounted to a penalty, which had a chilling effect on freedom
of expression, inhibiting the applicants for the future; and the
binding nature and precedent of the judgment will deter future
publication of information in circumstances similar to those of the
present case, and thus constituted a substantial continuing
restriction on freedom of expression.

        The applicants also contended that the interference with their
freedom of expression was not justified by Article 10 para. 2
(Art. 10-2) because at the time there was no pressing social need for
such interferences. In view of the imminent publication of
"Spycatcher" in the United States all confidentiality in the
information had already been irretrievably lost.  On 12 July 1987 tens
of thousands of copies of the book had already been, or were being,
distributed to United States bookshops where they were placed on
display for sale from Monday 13 July 1987 onwards.  The destruction of
any secrecy in the material was therefore inevitable.  Accordingly
there was no difference in principle between publication by the
applicants on 12 July 1987 or a week later.

        The Government submitted, inter alia, that the decision of the
House of Lords on 13 October 1988 did not constitute an interference
with the applicants' freedom of expression as they had published the
extract in question; after that decision they were able to publish the
remaining extracts, and, anyway, they have not to date accounted for
those profits.  Even if there had been an interference, it was
prescribed by law and necessary in a democratic society for a
legitimate aim, namely the prevention of the disclosure of information
received in confidence, within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention.  It resulted from the principles of
equity that the applicants should account for any profits made from
their breach of confidence.  The requirement to account for profits
was well within the margin of appreciation afforded to States by the
Convention in such an area and was not disproportionate to the
legitimate aim pursued.

        Article 10 (Art. 10) of the Convention guarantees freedom of
expression, including freedom to receive and impart information and
ideas regardless of frontiers.  The exercise of these freedoms, since
it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society for certain limited
purposes, such as the protection of national security interests or the
prevention of the disclosure of information received in confidence.
Article 13 (Art. 13) of the Convention guarantees a right to an
effective domestic remedy for claims concerning breaches of the
Convention and Article 14 (Art. 14) requires States to secure the
enjoyment of Convention rights and freedoms without discrimination.

        The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and fact under
the Convention, the determination of which should depend upon an
examination of the merits of the application as a whole.

        The Commission concludes, therefore, that the application is
not manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.  No other grounds for declaring it
inadmissible have been established.

        For these reasons, the Commission, by a majority,


        without prejudging the merits of the case.

Secretary to the Commission               President of the Commission

       (H.C. KRÜGER)                            (C.A. NØRGAARD)