Attorney General v Times Newspapers Ltd and others
Reference:  EWCA Civ 97;  1 WLR 885;  EMLR 530
Court: Court of Appeal
Judge: Lord Phillips MR,Tuckey & Longmore LJJ
Date of judgment: 25 Jan 2001
Summary: Confidential information – breach of confidence – public interest – public domain - injunctive relief - Article 10 ECHR - s 12 HRA
Instructing Solicitors: Theodore Goddard for the Defendant
In 1996 the defendant newspaper had given an undertaking to the Attorney General not to publish information about the British intelligence service disclosed to it by T, a former employee of the service. The defendant applied to vary the undertaking so as to permit it to publish extracts of a book written by T and published in Russia once the book had entered the public domain. The book contained matters disclosed in beach of confidence and matters which might be damaging to the national interest. The judge varied the undertaking to permit the defendant to republish information which had previously been published or made generally accessible to the public at large. The Attorney General appealed on the grounds that the phrase “generally accessible to the public at large” was too wide and that, to avoid damage to the national interest, publication should only be allowed when the defendant could demonstrate that the book had come to the widespread attention of the public at large.
Whether a publisher should be required to obtain prior approval from the Attorney General before publishing material which might be damaging to national security.
Although it was desirable that there should be consultation between a newspaper and the intelligence services before publication of information that might include matters capable of damaging the national interest, it was not right having regard to article 10 ECHR and s 12 HRA, to subject the defendant to a fetter on its right to freedom of expression beyond that which applied to other publishers who had not given the undertaking.
Because the parties agreed in the course of the hearing that publication should be allowed to the extent that information was in the public domain, the alternative definitions of what amounted to “public domain” canvassed by the parties were not considered by the Court of Appeal. There remains a real issue as to whether information loses its confidential nature only when it has been widely circulated or when it is merely accessible to the public, for example by being placed on the internet. In the light of subsequent case law, such as Venables v News Group Newspapers Ltd, it would appear that different criteria may apply depending on whether the information is personal (ie ‘private’) or of another type of confidence. In cases of government secrets it is suggested that once information has been accessed by those to whom disclosure causes most harm, the actual numbers of those who have access to it should not be determinative.