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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> THE SUNDAY TIMES v. THE UNITED KINGDOM - 6538/74 [1979] ECHR 1 (26 April 1979)
URL: http://www.bailii.org/eu/cases/ECHR/1979/1.html
Cite as: 2 EHRR 245, (1979-80) 2 EHRR 245, [1979] ECHR 1, (1979) 2 EHRR 245, (1979) EHRR 245

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JISCBAILII_CASE_ HUMAN_RIGHTS_ECHR

In the Sunday Times case,

The European Court of Human Rights, taking its decision in plenary

session in application of Rule 48 of the Rules of Court and composed

of the following judges:

Mr. G. BALLADORE PALLIERI, President,

Mr. G. WIARDA,

Mr. H. MOSLER,

Mr. M. ZEKIA,

Mr. J. CREMONA,

Mr. P. O'DONOGHUE,

Mrs. H. PEDERSEN

Mr. Thór VILHJÁLMSSON,

Mr. R. RYSSDAL,

Mr. W. GANSHOF VAN DER MEERSCH,

Sir Gerald FITZMAURICE,

Mrs. D. BINDSCHEDLER-ROBERT,

Mr. D. EVRIGENIS,

Mr. P.-H. TEITGEN,

Mr. G. LAGERGREN,

Mr. L. LIESCH,

Mr. F. GÖLCÜKLÜ,

Mr. F. MATSCHER,

Mr. J. PINHEIRO FARINHA,

Mr. E. GARCIA DE ENTERRIA,

and also Mr. M.-A. EISSEN, Regristrar, and Mr. H. PETZOLD, Deputy

Registrar,

Having deliberated in private from 30 November to 2 December 1978 and

from 27 to 29 March 1979,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The Sunday Times case was referred to the Court by the European

Commission of Human Rights ("the Commission"). The case originated in

an application against the United Kingdom of Great Britain and

Northern Ireland lodged with the Commission on 19 January 1974 under

Article 25 (art. 25) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") by the publisher

(Times Newspapers Limited), the editor (Mr. Harold Evans) and a group

of journalists of the British weekly newspaper The Sunday Times.

2. The Commission's request, to which was attached the report provided

for under Article 31 (art. 31) of the Convention, was lodged with the

registry of the Court on 15 July 1977, within the period of three

months laid down by Articles 32 para. 1 and 47 (art. 32-1, art. 47).

The request referred to Articles 44 and 48 (art. 44, art. 48) of the

Convention and to the declaration made by the United Kingdom

recognising the compulsory jurisdiction of the Court (Article 46)

(art. 46). The purpose of the Commission's request is to obtain a

decision from the Court as to whether or not the facts of the case

disclose a breach by the respondent State of its obligations under

Article 10 (art. 10) of the Convention either alone or in conjunction

with Article 14 (art. 14+10) or Article 18 (art. 18+10).

3. The Chamber of seven judges to be constituted included, as ex

officio members, Sir Gerald Fitzmaurice, the elected judge of British

nationality (Article 43 of the Convention) (art. 43), and

Mr G. Balladore Pallieri, the President of the Court (Rule 21 para. 3 (b)

of the Rules of Court). On 28 July 1977, the President of the Court

drew by lot, in the presence of the Registrar, the names of the five

other members, namely Mr. H. Mosler, Mr. M. Zekia, Mr. P. O'Donoghue,

Mr. R. Ryssdal and Mr. J. Pinheiro Farinha (Article 43 in fine of the

Convention and Rule 21 para. 4) (art. 43).

Mr. Balladore Pallieri assumed the office of President of the Chamber

(Rule 21 para. 5).

4. The President of the Chamber ascertained, through the Registrar,

the views of the Agent of the Government of the United Kingdom ("the

Government") and the Delegates of the Commission regarding the

procedure to be followed. By Order of 15 September 1977, he decided

that the Agent should have until 7 December 1977 to file a memorial

and that the Delegates should be entitled to file a memorial in reply

within two months from the date of the transmission of the

Government's memorial to them by the Registrar.

The Government's memorial was received at the registry on

8 December 1977. On 10 February 1978, the Delegates transmitted to the

Court a memorial which had been submitted to them on behalf of the

applicants; the Delegates indicated that they did not at that stage

wish to express a view of their own or to comment on the applicant's

memorial, but reserved the right to do so at the oral hearings.

5. After consulting, through the Deputy Registrar, the Agent of the

Government and the Delegates of the Commission, the President directed

by an Order of 16 March 1978 that the oral proceedings should open on

24 April 1978. By an Order of 20 March 1978, he authorised the Agent

to file, not later than 7 April 1978, a supplementary memorial; this

was received at the registry on 6 April.

On 13 April, the Secretary to the Commission transmitted to the Court

a letter addressed to him on 10 April by the applicants, together with

certain documents enclosed with that letter.

6. The oral hearings were held in public at the Human Rights Building,

Strasbourg, on 24 and 25 April 1978.

There appeared before the Court:

- for the Government:

Mr. D. ANDERSON, Legal Counsellor, Foreign and

Commonwealth Office, Agent,

The Rt. Hon. Peter ARCHER, M.P., Q.C., Solicitor-General,

Mr. N. BRATZA, Barrister-at-Law, Counsel,

Mr. R. RICKS, Treasury Solicitor's Department,

Mr. M. SAUNDERS, Law Officers' Department, Advisers;

- for the Commission:

Mr. J. FAWCETT, Principal Delegate,

Mr. J. CUSTERS,

Mr. J. FROWEIN, Delegates,

Mr. A. LESTER, Q.C.,

Mr. A. WHITAKER, Legal Manager, Times Newspapers Ltd., assisting

the Delegates under Rule 29 para. 1, second sentence.

The Court heard the addresses and submissions of Mr. Archer for the

Government and of Mr. Fawcett, Mr. Frowein and Mr. Lester for the

Commission, as well as Mr. Lester's replies to questions put by

certain judges. During the course of the hearing, the Commission made

available to the Court other documents which it had received from the

applicants.

7. The Chamber deliberated in private from 25 to 27 April.

At a meeting held in private on 27 October 1978 in Strasbourg, the

Chamber decided under Rule 48 to relinquish jurisdiction forthwith in

favour of the plenary Court, "considering that the case raise[d]

serious questions affecting the interpretation of the Convention

...".

Having obtained, through the Registrar, the agreement of the Agent of

the Government and the concurring opinion of the Delegates of the

Commission, the Court decided on 30 November that the proceedings

would continue without any further oral hearings (Rule 26).

AS TO THE FACTS

Historical

8. Between 1958 and 1961 Distillers Company (Biochemicals) Limited

("Distillers") manufactured and marketed under licence in the United

Kingdom drugs containing an ingredient initially developed in the

Federal Republic of Germany and known as thalidomide. The drugs were

prescribed as sedatives for, in particular, expectant mothers. In 1961

a number of women who had taken the drugs during pregnancy gave birth

to children suffering from severe deformities; in the course of time

there were some 450 such births in all. Distillers withdrew all drugs

containing thalidomide from the British market in November of the same

year.

9. Writs against Distillers were issued, between 1962 and 1966, by the

parents of seventy of the deformed children on their own and on their

children's behalf. They contended that the cause of the deformities

was the effect on the foetus of thalidomide administered to the mother

during pregnancy, alleged that Distillers had been negligent in the

production, manufacture and marketing of the drugs and claimed

damages. Distillers denied negligence and put in issue the legal basis

of the claims. A number of actions were also brought in respect of

persons alleged to have suffered peripheral neuritis as a result of

use of the drugs.

Of the seventy actions by parents, sixty-five were settled in 1968

following negotiations between the parties' legal advisers. In

sixty-two of the cases, the children were still alive and the

settlement therefore required court approval which was obtained.

The basis of the settlement was that each plaintiff, provided he

withdrew his allegation of negligence, should receive from Distillers

a lump sum equal to 40 per cent of the amount he would have recovered

had his action wholly succeeded. Further proceedings in the High

Court in 1969 dealt with the assessment of damages in the cases

settled on the above-mentioned basis and, in the event, Distillers

paid out some £ 1,000,000 in respect of fifty-eight cases. Two cases

were otherwise disposed of and the amount of damages in the remaining

two was still under negotiation in July 1973.

10. The 1968 settlement did not cover five of the original seventy

actions, since the writs in those five cases had not been issued

within the three-year limitation period prescribed by English law.

Leave to issue writs out of time was subsequently granted ex parte by

the court both in those five cases and in respect of a further two

hundred and sixty-one claims by the parents or guardians of other

deformed children. A further one hundred and twenty-three claims had

also been notified to Distillers in correspondence but formal

proceedings were not started by agreement between the parties.

Thus, by 1971, three hundred and eighty-nine claims in all were

pending against Distillers. Apart from a statement of claim in one

case and a defence delivered in 1969, no further steps were taken in

those actions where writs had been issued. Distillers had announced

in February 1968 that they would provide a substantial sum for the

benefit of the remaining three hundred and eighty-nine claimants and

both sides were anxious to arrive at a settlement out of court.

The case in fact raised legal issues of considerable difficulty under

English law. Had any of the actions come on for trial, they would

have been heard by a professional judge sitting without a jury.

In 1971, negotiations began on a proposal by Distillers to establish a

charitable trust fund for all the deformed children other than those

covered by the 1968 settlement. The proposal was made subject to the

condition that all the parents accepted but five refused, one, at

least, because payments out of the fund would have been based on need.

An application, on behalf of the parents who would have accepted, to

replace those five by the Official Solicitor as next friend was

refused by the Court of Appeal in April 1972. During subsequent

negotiations, the original condition was replaced by a requirement

that "a substantial majority" of the parents consented. By

September 1972, a settlement involving the setting up of a £ 3,250,000

trust fund had been worked out and was expected to be submitted in

October to the court for approval.

11. Reports concerning the deformed children had appeared regularly in

The Sunday Times since 1967, and in 1968 it had ventured some

criticism of the settlement concluded in that year. There had also

been comment on the children's circumstances in other newspapers and

on television. In particular, in December 1971, the Daily Mail

published an article which prompted complaints from parents that it

might jeopardise the settlement negotiations in hand; the Daily Mail

was "warned off" by the Attorney-General in a formal letter

threatening sanctions under the law of contempt of court, but contempt

proceedings were not actually instituted. On 24 September 1972, The

Sunday Times carried an article entitled "Our Thalidomide Children:

A Cause for National Shame": this examined the settlement proposals

then under consideration, describing them as "grotesquely out of

proportion to the injuries suffered", criticised various aspects of

English law on the recovery and assessment of damages in personal

injury cases, complained of the delay that had elapsed since the

births and appealed to Distillers to make a more generous offer.

The article contained the following passage:

"... the thalidomide children shame Distillers ... there are times

when to insist on the letter of the law is as exposed to criticism as

infringement of another's legal rights. The figure in the proposed

settlement is to be £ 3.25 million, spread over 10 years. This does

not shine as a beacon against pre-tax profits last year of

£ 64.8 million and company assets worth £ 421 million. Without in any

way surrendering on negligence, Distillers could and should think

again."

A footnote to the article announced that "in a future article The

Sunday Times [would] trace how the tragedy occurred". On

17 November 1972, the Divisional Court of the Queen's Bench Division

granted the Attorney-General's application for an injunction

restraining publication of this future article on the ground that it

would constitute contempt of court (see paragraphs 17 to 35 below for

a summary of the draft article and particulars of the contempt

proceedings).

12. Although the proposed article was accordingly not published, The

Sunday Times throughout October contained a number of features on "the

thalidomide children" and the laws of compensation for personal

injuries. There was also a considerable response from the public, the

press and television. Some radio and television programmes were

cancelled after official warnings about contempt but proceedings were

not actually taken except as regards a television programme, shown on

8 October 1972, concerning the plight of the children. The

Attorney-General claimed that that programme was calculated to bring

pressure on Distillers to pay more. On 24 November 1972, the

Divisional Court decided (Attorney-General v. London Weekend

Television Ltd.) that there had been no contempt because it was not

established that the television company deliberately intended to

influence the pending proceedings and, in the circumstances, a single

showing of the programme did not create "a serious risk" of

interference with the course of justice. The court distinguished the

case concerning the proposed Sunday Times article on the basis that,

there, the editor had made it plain that he was deliberately

attempting to persuade Distillers to pay more.

13. In the House of Commons, the Speaker had repeatedly refused to

allow any debate or questions on the issues raised by the thalidomide

tragedy. However, on 29 November 1972, the matter was extensively

debated in the House which had before it a motion, inter alia, calling

on Distillers to face up to their moral responsibilities and for

immediate legislation to establish a trust fund for the deformed

children. Shortly before the debate, Distillers had increased the

value of their proposed trust fund from £ 3,250,000 to £ 5,000,000.

Much of the debate was devoted to the question whether immediate

legislation would or would not take pressure off Distillers and/or the

parents and to a discussion of social services for the children and

the disabled in general and of official scrutinising systems for new

drugs. Tributes were paid to the Sunday Times campaign and various

criticisms were made of the law and lawyers. The question of

Distillers' legal, as opposed to moral, responsibility was not

discussed, although references were made to facts - described as "the

danger flags flying" - of which little notice had been taken, and to

the absence of a general practice of tests on the foetus when

thalidomide was first marketed. Similar references appeared in the

draft Sunday Times article. At the close of the debate, the House,

"disturbed about the plight of thalidomide children, and the delay in

reaching a settlement", recognised the initiatives taken by the

Government to improve services for the disabled and welcomed the

Government's undertaking to investigate any special cases of need and

to "consider, as soon as the cases are no longer sub judice, whether a

trust fund needs to be established for thalidomide children".

14. The Parliamentary debate was followed by a further wave of

publications and there was a nationwide campaign in the press and

among the general public directed to bringing pressure on Distillers

to make a better offer. The campaign included a threat to boycott

Distillers' other products and many of their shareholders publicly

urged a speedy and satisfactory settlement. Two articles in the Daily

Mail of 8 and 9 December 1972 referred, in particular, to many of the

same test and research results as the enjoined Sunday Times article.

There were also, round about this time, a number of press articles

denying Distillers' legal responsibility, but no further contempt

proceedings were instituted. A public investigation of the causes of

the tragedy was repeatedly demanded but never carried out; in fact, it

was finally refused by the competent Minister in the summer of 1976.

Following the public criticism, the proposed settlement did not

proceed and, in December 1972 and January 1973, Distillers came

forward with new proposals which involved a further increase in the

value of the trust fund to £ 20,000,000. Negotiations continued. In

the meantime, following an appeal by Times Newspapers Ltd., the

Divisional Court's injunction was discharged by the Court of Appeal on

16 February 1973, only to be restored in modified form on

24 August 1973 following the House of Lords' decision of 18 July

allowing a further appeal by the Attorney-General (see paragraphs 24

to 34 below).

15. On 30 July 1973, a single judge of the Queen's Bench Division

approved in the great majority of the cases the terms of a settlement,

after satisfying himself that they were in the true interests of the

minors involved. Under the settlement:

(a) each plaintiff, provided he withdrew his action, was to receive a

lump sum equal to fourty per cent of the amount he would have received

had the action been successful; and

(b) a charitable trust fund was to be set up for the deformed

children, including those covered by the 1968 settlement.

Distillers maintained their denial of negligence on the part of

themselves or their advisers; since not all the parents accepted the

proposed settlement, this issue remained sub judice.

16. On application by the Attorney-General, the injunction against

Times Newspapers Ltd. was discharged on 23 June 1976 (see paragraph 35

below). Four days later, the contentious article was published. It

differed in a number of respects from the original draft; in

particular, it omitted certain matters based on information which had

been received in confidence by the parents' advisers during the

thalidomide litigation. Disclosure of this information had been

forbidden by a further injunction of 31 July 1974 of which the

applicants did not complain before the Commission.

By 23 June 1976, four of the parents' actions against Distillers

remained outstanding: in one, the pleadings were closed but nothing

had been done since 1974; in two, there had been only delivery of a

statement of claim; in the fourth, only a writ had been issued.

Moreover, there was still pending at that date litigation between

Distillers and their insurers which also involved the issue of

negligence: the insurers had contested their liability to pay for the

1973 settlement on the ground, inter alia, that Distillers had not

carried out adequate tests and research. This action had been set down

for trial on 4 October 1976 but was, in fact, settled on

24 September 1976.

Summary of the draft article

17. The unpublished article which was the subject of the injunction

opened with a suggestion that the manner of marketing thalidomide in

Britain left a lot to be desired. It stated that Distillers:

"- relied heavily on the German tests and had not completed full

trials of its own before marketing the drug;

- failed to uncover in its research into medical and scientific

literature the fact that a drug related to thalidomide could cause

monster births;

- before marketing the drug did no animal tests to determine the

drug's effect on the foetus;

- accelerated the marketing of the drug for commercial reasons.

Were not deflected by a warning from one of its own staff that

thalidomide was far more dangerous than had been supposed;

- were not deflected by the discovery that thalidomide could damage

the nervous system, in itself a hint that it might damage the foetus;

- continued to advertise the drug as safe for pregnant women up to a

month from when it was withdrawn."

The body of the article described how, after their apparently

disappointing initial ventures into pharmaceutics, Distillers learned

in 1956 that the German firm of Chemie Gruenenthal had developed a

sedative considered harmless and unique - thalidomide. The very large

market existing at the time for sedatives was becoming overcrowded and

Distillers thought it necessary to act quickly. Their decision to

market the drug was taken before they had seen technical information,

other than the transcript of a German symposium, and before carrying

out independent tests. Indeed, they seemed to believe that thalidomide

would not need elaborate tests. Distillers put in hand a search of

scientific literature but failed to discover the results of research

in 1950 by a Dr. Thiersch showing that a chemical related to

thalidomide could cause monster births; opinions differed as to

whether his work should have been found.

Sales of thalidomide began in Germany in October 1957 and Distillers

were committed under their licensing agreement to commence marketing

in April 1958. They put the programme for the drug's launch in hand

even though clinical trials were behind. Results of the first British

trials were published in January 1958: it had been found that

thalidomide suppressed the work of the thyroid gland and that its

method of action was unknown; the researcher warned that more tests

were needed. Distillers did not rely on this advice, basing their

decision on "flimsy" evidence, namely other trials in the United

Kingdom and assurances concerning the results of research in Germany.

The warning about anti-thyroid effects was particularly relevant since

it was known that drugs affecting the thyroid could affect unborn

children; it was reasonable to argue that Distillers should have

delayed launching the drug pending further tests.

On 14 April 1958, continued the article, thalidomide went on sale in

Britain, advertised as "completely safe". At the end of 1959,

Distillers' pharmacologist discovered that thalidomide in liquid form

was highly poisonous and that an overdose might be lethal, but this

report was never published and the liquid product went on sale in

July 1961. In December 1960, it was reported that patients who had

taken thalidomide in the tablet form in which it had first been on

sale showed symptoms of peripheral neuritis; this news had the result

of holding up an application to market thalidomide in the United

States of America where it was, in fact, never sold. Further cases of

peripheral neuritis were reported in 1961 but Distillers' advertising

continued to stress the drug's safety.

Early in 1961, children were born in the United Kingdom with

deformities but there was at the time nothing to connect them with

thalidomide. However, between May and October, a doctor in Australia

discovered that the common factor in a number of monster births was

that mothers had taken thalidomide during pregnancy. This was reported

to Chemie Gruenenthal on 24 November who withdrew the drug two days

later following newspaper disclosures. Distillers ended the public

sale of thalidomide immediately afterwards. Tests on animals,

published in April 1962, confirmed that thalidomide caused

deformities, but sales to hospitals were not ended until

December 1962.

The draft article concluded as follows:

"So the burden of making certain that thalidomide was safe fell

squarely on [Distillers]. How did the company measure up to this heavy

responsibility? It can be argued that:

1. [Distillers] should have found all the scientific literature about

drugs related to thalidomide. It did not.

2. It should have read Thiersch's work on the effects on the nervous

system of drugs related to thalidomide, have suspected the possible

action on unborn babies and therefore have done tests on animals for

teratogenic effect. It did not.

3. It should have done further tests when it discovered that the drug

had anti-thyroid activity and unsuspected toxicity. It did not.

4. It should have had proof before advertising the drug as safe for

pregnant women that this was in fact so. It did not.

For [Distillers] it could be argued that it sincerely believed that

thalidomide was free from any toxicity at the time it was first put on

the market in Britain; that peripheral neuritis did not emerge as a

side effect until the drug had been on sale in Britain for two years;

that testing for teratogenic effects was not general in 1958; that if

tests had been done on the usual laboratory animals nothing would have

shown because it is only in the New Zealand white rabbit that

thalidomide produces the same effects as in human beings; and,

finally, that in the one clinical report of thalidomide being given to

pregnant women no serious results followed (because thalidomide is

dangerous only during the first 12 weeks of pregnancy).

...

There appears to be no neat set of answers ...".

Domestic law

18. English law relating to contempt of court is described by the

report of the Committee on Contempt of Court (the "Phillimore report",

see paragraph 36 below) as "a means whereby the courts may act to

prevent or punish conduct which tends to obstruct, prejudice or abuse

the administration of justice either in relation to a particular case

or generally" and as existing to protect not the dignity of the judges

but "the administration of justice and 'the fundamental supremacy of

the law'". Contempt of court is, with certain exceptions, a criminal

offence punishable by imprisonment or a fine of unlimited duration or

amount or by an order to give security for good behaviour; punishment

may be imposed by summary process without trial by jury and the

publication of facts or opinions constituting a criminal contempt may

also be restrained by similar process. To some extent, contempt of

court covers the same ground as various ordinary criminal offences

against the administration of justice, such as perversion of the

course of justice. Contempt of court is a creature of the common law

and covers many forms of conduct. Lord Diplock remarked in his speech

in the House of Lords in the Sunday Times Case :

"There is an abundance of empirical decisions upon particular

instances of conduct which has been held to constitute contempt of

court. There is a dearth of rational explanation or analysis of a

general concept of contempt of court which is common to the cases

where it has been found to exist."

The Phillimore report divides contempt of court into the following

categories:

(a) "contempt in the face of the court", for example throwing missiles

at the judge, insulting persons in court, demonstrating in court;

(b) "contempt out of court", subdivided into:

(i) reprisals against witnesses after the conclusion of proceedings;

(ii) "scandalising the court", for example, abusing a judge qua judge

or attacking his impartiality or integrity;

(iii) disobedience to court orders;

(iv) conduct, whether intentional or not, liable to interfere with the

course of justice in particular proceedings.

The present case concerns the last-mentioned category which includes

contempts in the form of publications, reports or comments on legal

proceedings in progress. The Phillimore report states that there is a

lack of a clear definition of the kind of statement, criticism or

comment that will be held to amount to contempt. It adds that, until

the House of Lords in the Sunday Times Case "formulated a rather

different test", the tests of contempt for publications were all based

on the concept of prejudice to, or improper interference with, the

legal process and that the mischief which the law of contempt is and

always has been designed to suppress is the risk of prejudice to the

due administration of justice.

It seems that a publication may constitute contempt of court not only

if it appears after the issue of a writ but also if it appears when

proceedings are "imminent".

19. The Attorney-General has a right, but not an obligation, to bring

before the court any matter which he thinks may amount to contempt and

which he considers should, in the public interest, be so brought.

Save in certain cases, contempt proceedings may also be instituted by

private individuals.

20. It should be noted, in this connection, that a House of Commons

rule prohibits reference in debate to matters that are sub judice.

Subject to certain exceptions, no reference at all, whether

prejudicial or not, may be made to civil litigation once the case has

been set down for trial or otherwise brought before the court; before

that time (or after it in the exceptional cases) such matters may be

referred to unless the Chair considers there to be a real and

substantial danger of prejudice to the trial of the case. It was under

this rule that the House held its debate of 29 November 1972

(see paragraph 13 above), a report of which was published.

The domestic contempt proceedings

(a) Introduction

21. Distillers made a formal complaint to the Attorney-General that

the Sunday Times article of 24 September 1972 constituted contempt of

court in view of the litigation still outstanding and, on

27 September, the Solicitor-General, in the absence of the

Attorney-General, wrote to the editor of The Sunday Times to ask him

for his observations. The editor, in his reply, justified that article

and also submitted the draft of the proposed future article for which

he claimed complete factual accuracy. The Solicitor-General enquired

whether the draft had been seen by any of the parties to the

litigation, as a consequence of which a copy of the draft was sent by

The Sunday Times to Distillers on 10 October. On the previous day, The

Sunday Times had been advised that the Attorney-General had decided to

take no action in respect of the matter already published in September

and October; Distillers also took no action. On 11 October, the

Attorney-General's Office informed The Sunday Times that, following

representations by Distillers, the Attorney-General had decided to

apply to the High Court in order to obtain a judicial decision on the

legality of the publication of the proposed article. On the following

day, he issued a writ against Times Newspapers Ltd. in which he

claimed an injunction "to restrain the defendants ... by themselves,

their servants or agents or otherwise, from publishing or causing or

authorising to be published or printed an article in draft dealing,

inter alia, with the development, distribution and use of the drug

thalidomide, a copy of which article had been supplied to the

Attorney-General by the defendants".

(b) Decision of the Divisional Court

22. The Attorney-General's application was heard by three judges of

the Queen's Bench Division from 7 to 9 November 1972; on 17 November

the court granted the injunction.

In its judgment the court remarked:

"the article does not purport to express any views as to the legal

responsibility of Distillers ... but ... is in many respects critical

of Distillers and charges them with neglect in regard to their own

failure to test the product, or their failure to react sufficiently

sharply to warning signs obtained from the tests by others. No one

reading the article could ... fail to gain the impression that the

case against Distillers on the footing of negligence was a substantial

one."

The editor of The Sunday Times had indicated that any libel

proceedings following publication would be defended by a plea that the

contents of the article were true and the court approached the article

on the footing that it was factually accurate.

23. The reasoning in the court's judgment may be summarised as

follows. The objection to unilateral comment, prior to conclusion of

the court hearing, was that it might prevent the due and impartial

administration of justice by affecting and prejudicing the mind of the

tribunal itself, by affecting witnesses who were to be called or by

prejudicing the free choice and conduct of a party to the litigation.

It was the third form of prejudice that was relevant to the present

case. If a party was subjected to pressure of a kind which raised a

serious prospect that he would be denied justice because his freedom

of action in the case would be affected, then a contempt of court had

been established. The test of contempt was whether, in all the

circumstances of the particular case, the words complained of created

a serious risk that the course of justice might be interfered with,

irrespective of the writer's intention or the truth of the writing.

It was not for the court, as the defendants had contended, to balance

the competing interests of the protection of the administration of

justice on the one hand and the right of the public to be informed on

the other: comment raising a serious risk of interference with legal

proceedings should be withheld until the proceedings were terminated.

However, even if this were not so, there was in this case no public

interest in immediate disclosure which could outweigh the public

interest in preventing pressure on the parties to the litigation.

There was no distinction in the present case between persuasion

directed to a legal obligation and persuasion directed to a moral

obligation. The undoubted motive of The Sunday Times was to enlist

public opinion to exert pressure on Distillers and cause them to make

a more generous settlement than might otherwise be the case. There was

a deliberate attempt to influence the settlement of pending

proceedings and, having regard to the power of public opinion,

publication of the article would create a serious risk of interference

with Distillers' freedom of action in the litigation and would be a

clear contempt.

(c) Decision of the Court of Appeal

24. An appeal by Times Newspapers Ltd. against the Divisional Court's

decision was heard by the Court of Appeal from 30 January to

2 February 1973. The court had before it an affidavit by the editor of

The Sunday Times setting out developments in the intervening period

both in the case itself and in public discussion thereof. With the

leave of the court, counsel for Distillers made submissions on the

contents of the proposed article, pointing to errors he said it

contained. On 16 February, the Court of Appeal discharged the

injunction. Summaries of the judgments read by the three members of

the court appear below.

25. Lord Denning said that the proposed article:

"... contains a detailed analysis of the evidence against Distillers.

It marshals forcibly the arguments for saying that Distillers did not

measure up to their responsibility. Though, to be fair, it does

summarise the arguments which could be made for Distillers."

After pointing out that the court had no affidavit from Distillers as

to the effect of the proposed article on them and little knowledge of

the state of the litigation and settlement negotiations, Lord Denning

stated the law as follows:

"... when litigation is pending and actively in suit ... no one shall

comment on it in such a way that there is a real and substantial

danger of prejudice to the trial of the action, as for instance by

influencing the judge, the jurors, or the witnesses, or even by

prejudicing mankind in general against a party to the cause ... Even if

the person making the comment honestly believes it to be true, still

it is a contempt of court if he prejudges the truth before it is

ascertained in the proceedings ... [Further] none shall ... bring

unfair pressure to bear on one of the parties ... so as to force him

to drop his complaint, or to give up his defence, or to come to a

settlement on terms which he would not otherwise have been prepared to

entertain."

"Trial by newspaper", continued Lord Denning, must not be allowed.

However, the public interest in a matter of national concern had to be

balanced against the interest of the parties in a fair trial or

settlement; in the present case the public interest in discussion

outweighed the potential prejudice to a party. The law did not prevent

comment when litigation was dormant and not being actively pursued.

Moreover, since the law did not prevent comment on litigation which

had ended or had not started, there was nothing to prevent comment on

the sixty-two cases settled in 1968 or the one hundred and

twenty-three cases in which writs had not been issued. Even in

September 1972, the proposed article would not have amounted to

contempt: it was fair comment on a matter of public interest; it did

not prejudice pending litigation because that litigation had been

dormant for years and still was; and the pressure the article was

intended to bring to bear was legitimate. In addition, it would be

discrimination of the worst kind to continue to enjoin The Sunday

Times alone when Parliament and other newspaper had discussed the

matter since November 1972.

26. Lord Justice Phillimore pointed out that anyone could comment

freely on the cases which had been settled or in which no writ had

been issued. Unfair pressure to settle a case might constitute

contempt of court, but here there was no affidavit from Distillers and

no evidence that there was a serious risk of the proposed article's

compelling Distillers to settle for more or that the pressure was

unfair. The position would have been different if there had been a

real intention to bring the remaining cases to court since, in that

event, an article designed to prejudice the public against a party or

to put pressure on him so as to force a settlement could not have been

countenanced. Moreover, since November 1972, the House of Commons had

debated the matter and other newspapers, especially the Daily Mail,

had commented; it would therefore be unreal to continue injunction.

27. After indicating that he agreed with Lord Denning's judgment,

Lord Justice Scarman pointed out that no one expected a trial; the

writs were a move towards obtaining a settlement and the mere issue of

a writ could not stifle all comment. Since there was no evidence of

litigation actively in suit, it was unrealistic to treat the proposed

article as constituting a real or substantial prejudice to the course

of justice. Moreover, the public interest in freedom of speech on a

matter of great public moment had to be considered. Finally, even if

the Divisional Court had been right, the state of public opinion

following the House of Commons debate was such that the injunction

should now be discharged.

(d) Decision of the House of Lords

28. Following the Court of Appeal's decision, The Sunday Times

refrained from publishing the proposed article so as to enable the

Attorney-General to appeal. The Court of Appeal refused him leave to

appeal but this was granted by the House of Lords on 1 March 1973.

The hearing before the House of Lords was held in May 1973. On

18 July 1973, the House gave judgment unanimously allowing the appeal

and subsequently directed the Divisional Court to grant an injunction

in the terms set out in paragraph 34 below. Summaries of the speeches

read by the five Law Lords appear below.

29. Lord Reid said that the House must try to remove the uncertainty

which was the main objection to the present law. The law of contempt

had to be founded entirely on public policy: it was not there to

protect the rights of parties to a litigation but to prevent

interference with the administration of justice and should be limited

to what was reasonably necessary for the purpose. Freedom of speech

should not be limited more than was necessary but it could not be

allowed where there would be real prejudice to the administration of

justice.

Lord Reid turned first to the question of comment on pending

proceedings which was likely to bring pressure to bear upon one of the

litigants. Whilst comment likely to affect the minds of witnesses and

of the tribunal had to be stopped for otherwise the trial might well

be unfair, the fact that a party refrained from seeking to enforce his

full legal rights in no way prejudiced a fair trial, whether the

decision was or was not influenced by some third party. Accordingly,

where the only matter to be considered was pressure put on a litigant,

fair and temperate criticism or urging him to forgo his legal rights

was legitimate and admissible; thus, the article of 24 September 1972

did not constitute contempt. Publication in 1972 of the proposed

further article, which consisted "in the main of detailed argument and

evidence intended to show that Distillers did not exercise due care",

would not have added much to the pressure already on Distillers.

On this basis, Lord Reid could agree with the decision of the Court of

Appeal, though for different reasons. However, he then pointed out:

"The question whether Distillers were negligent has been frequently

referred to but, so far as I am aware, there has been no attempt to

assess the evidence. If this material were released now, it appears to

me to be almost inevitable that detailed answers would be published

and there would be expressed various public prejudgments of this

issue. That I would regard as very much against the public interest."

After noting that there was a strong and general feeling that trial by

newspaper should be prevented, Lord Reid continued:

"I think that anything in the nature of prejudgment of a case or of

specific issues in it is objectionable, not only because of its

possible effect on that particular case but also because of its side

effects which may be far-reaching. Responsible 'mass media' will do

their best to be fair, but there will also be ill-informed, slapdash

or prejudiced attempts to influence the public. If people are led to

think that it is easy to find the truth, disrespect for the processes

of the law could follow, and, if mass media are allowed to judge,

unpopular people and unpopular causes will fare very badly. Most cases

of prejudging of issues fall within the existing authorities on

contempt. I do not think that the freedom of the press would suffer,

and I think that the law would be clearer and easier to apply in

practice if it is made a general rule that it is not permissible to

prejudge issues in pending cases."

The Court of Appeal had wrongly described the actions as "dormant",

since settlement negotiations were in hand and improper pressure on a

litigant to settle could constitute contempt. As for the Court of

Appeal's balancing of competing interest, Lord Reid said:

"... contempt of court has nothing to do with the private interest of

litigants. I have already indicated the way in which I think that a

balance must be struck between the public interest in freedom of

speech and the public interest in protecting the administration of

justic from interference. I do not see why there should be any

difference in principle between a case which is thought to have news

value and one which is not. Protection of the administration of

justice is equally important whether or not the case involves

important general issues."

Lord Reid concluded that publication of the article should be

postponed for the time being in the light of the circumstances then

prevailing; however, if things dragged on indefinitely, there would

have to be a reassessment of the public interest in a unique

situation.

30. For Lord Morris of Borth-y-Gest, the law of contempt was designed

to protect the authority of the courts and to prevent unjustifiable

interference with recourse to them. The public interest in free speech

had to be put in the balance and no limitations should be imposed

beyond those which were absolutely necessary, but

"this does not mean that if some conduct ought to be stigmatised as

being contempt of court it could receive absolution and be regarded as

legitimate because it had been inspired by a desire to bring about a

relief of some distress that was a matter of public sympathy and

concern. There can be no such thing as a justifiable contempt of

court."

A court would only find a contempt if the risk of prejudice were

serious, real or substantial. Not only had there to be no influencing

of the court or of witnesses, but it was unseemly that there should be

public advocacy in favour of one side in a cause awaiting

determination by the courts. Lord Morris stressed that there should be

no "trial by newspaper", remarking that:

"... the courts ... owe it to the parties to protect them either from

the prejudices of prejudgment or from the necessity of having

themselves to participate in the flurries of pre-trial publicity."

The actions against Distillers, he continued, were not "dormant" just

because the parties preferred a settlement to a trial. Whilst there

would have been no objection in 1972 to a comment on the amounts paid

under the 1968 settlement or on the general principles of law involved

or to a temperate moral appeal to Distillers, the proposed article

went further. Its avowed object was to bring public pressure on

Distillers to pay more. Negligence was one of the issues arising, and

the draft article, though asserting no conclusions, showed that there

was a considerable case against Distillers. The time had not yet

arrived to discharge the injunction.

31. Lord Diplock said that contempt of court was punishable because it

undermined the confidence of the parties and of the public in the due

administration of justice. The due administration of justice required

that all citizens should have unhindered access to the courts; that

they should be able to rely on an unbiased decision based only on

facts proved in accordance with the rules of evidence; that, once a

case was submitted to a court, they should be able to rely upon there

being no usurpation by any other person, for example in the form of

"trial by newspaper", of the function of the court. Conduct calculated

to prejudice any of these requirements or to undermine public

confidence that they would be observed was contempt of court.

Lord Diplock stated that:

"... contempt of court in relation to a civil action is not restricted

to conduct ... calculated ... to prejudice the fair trial of that

action by influencing ... the tribunal ... or witnesses; it extends

also to conduct that is calculated to inhibit suitors generally from

availing themselves of their constitutional right to have their legal

rights and obligations ascertained and enforced in courts of law, by

holding up any suitor to public obloquy for doing so or by exposing

him to public and prejudicial discussion of the merits or the facts of

his case before they have been determined by the court or the action

has been otherwise disposed of in due course of law."

The proposed Sunday Times article, Lord Diplock considered, fell into

this latter category since it discussed prejudicially the facts and

merits of Distillers' defence to the charge of negligence before the

actions had been determined by a court or settled. The actions could

not be ignored as "dormant", as the same protection had to apply to

settlement negotiations as to the actual trial. Subsequent events did

not justify dissolution of the injunction although, "as [was]

conceded", the wording called for some amendment. The seriousness of

the risk of interference with the due administration of justice was

relevant only to the question whether the court should inflict

punishment: once there was a real risk, there was at least technical

contempt.

The passage quoted at paragraph 11 above from the article of

24 September 1972 was also, thought Lord Diplock, a contempt though

for a different reason, namely that it held Distillers up to public

obloquy for relying on a defence available to them under the law;

however, those parts of the September article that dealt with general

principles of law were unobjectionable since, if discussion of such

matters of general interest had the indirect effect of bringing

pressure on a litigant, it had to be borne because of the greater

public interest in upholding freedom of discussion on matters of

public concern.

32. Lord Simon of Glaisdale agreed with Lord Diplock's statement of

the law and with his views concerning the above-mentioned passage in

the September article. He saw the proposed further article as a

detailed discussion of one of the crucial issues in the actions and as

designed to bring moral pressure on Distillers to settle on better

terms. The law of contempt was the means by which the law vindicated

the public interest in the due administration of justice. Most civil

actions were settled and interference with settlement negotiations was

no less contempt than interference with a procedural situation in the

strictly forensic sense. The due course of justice included

negotiation towards a settlement on the basis of the ordained law and

the Court of Appeal had been wrong in saying that the article would

not be contempt because the litigation was dormant. Even private

pressure on a litigant was generally impermissible and could be

justified only within narrow limits. The law had to hold in balance

two public interests - in freedom of discussion and in the due

administration of justice - but would be too uncertain if the balance

were to be struck anew in each case. The law had to lay down some

general guidelines; as regards particular litigation, the paramount

public interest pendente lite was that the legal proceedings should

progress without interference. An exception was that public discussion

of a matter of general interest which had already started before

litigation began did not have to stop if it was not intended to

prejudice the litigation.

33. Lord Cross of Chelsea stated that "contempt of court" meant an

interference with the administration of justice. The rules of contempt

should not inhibit freedom of speech more than was reasonably

necessary. The proposed article examined the question whether

Distillers had been negligent and any "prejudging" of issues of fact

or law in pending civil or criminal proceedings was in principle such

an interference. He continued:

"A publication prejudging an issue in pending litigation which is

itself innocuous enough may provoke replies which are far from

innocuous but which, as they are replies, it would seem unfair to

restrain ... An absolute rule - though it may seem to be unreasonable

if one looks only to the particular case - is necessary in order to

prevent a gradual slide towards trial by newspaper or television."

This rule, added Lord Cross, applied to the outcome of settlement

negotiations as much as to the result of the actual trial.

Times Newspapers Ltd. had argued that there should be an exception to

this rule when matters of great public concern were involved; however,

the House was only concerned with discussion of the issue whether

Distillers had been negligent and discussion of the wider issues, such

as the scope of producers' liability and the assessment of damages,

was not inhibited. Reliance had also been placed by the publisher on

the lapse of time since the births and the absence of any public

inquiry; however, neither side was to blame for the delay, the Court

of Appeal had wrongly described the actions as "dormant" since

settlement negotiations were being actively pursued and the absence of

a public inquiry did not justify allowing the press to conduct an

inquiry while proceedings were in progress. The position had not

altered since the Divisional Court hearing: the House of Commons

debate had concentrated on the moral issues and, although Distillers

had come forward with an offer which made an overall settlement likely

- so that publication of the article could not now harm them -, it was

not certain that no claims would come to court. Accordingly, the

injunction should be restored but with liberty to apply for its

discharge whenever Times Newspapers Ltd. considered that they could

persuade a court that its continuation was not warranted in the light

of the facts then existing.

The article of 24 September 1972 was not a contempt: prejudging an

issue was contempt of court but a fairly and accurately expressed

comment that might bring even great pressure on a litigant was not.

34. On 25 July 1973, the House of Lords ordered that the cause be

remitted to the Divisional Court with a direction to grant the

following injunction:

"That ... Times Newspapers Ltd., by themselves, their servants, agents

or otherwise, be restrained from publishing, or causing or authorising

or procuring to be published or printed, any article or matter which

prejudges the issues of negligence, breach of contract or breach of

duty, or deals with the evidence relating to any of the said issues

arising in any actions pending or imminent against Distillers ... in

respect of the development, distribution or use of the drug

'thalidomide'."

The defendants were granted liberty to apply to the Divisional Court

for discharge of the injunction.

The Divisional Court implemented the above direction on

24 August 1973.

(e) Decision of the Divisional Court discharging the injunction

35. On 23 June 1976, the Divisional Court heard an application by the

Attorney-General for the discharge of the injunction. It was said on

behalf of the Attorney-General that the need for the injunction no

longer arose: most of the claims against Distillers had been settled

and there were only four extant actions which could by then have been

brought before the courts if they had been pursued diligently.

As there was a conflicting public interest in The Sunday Times being

allowed to publish "at the earliest possible date", the

Attorney-General submitted the matter to the court as one where the

public interest no longer required the restraint. The court,

considering that the possibility of pressure on Distillers had

completely evaporated, granted the application.

Proposals for reform of the law of contempt of court

36. One particular aspect of the law had been considered by the

Interdepartmental Committee on the Law of Contempt as it affects

Tribunals of Inquiry, which reported in 1969. On 8 June 1971, the Lord

Chancellor and the Lord Advocate appointed a committee under the

chairmanship of Lord Justice Phillimore to consider whether any

changes were required in the law of contempt as a whole. The

Phillimore report was presented to Parliament in December 1974, having

been delayed by the Sunday Times contempt litigation. The report

discussed the various judgments in that case and described it as well

illustrating the uncertainty of the present state of the law regarding

publications dealing with legal proceedings. Whilst it might be that

the right to issue such publications had on occasion to be overridden

by the public interest in the administration of justice, the committee

was of the opinion that the balance had moved too far against the

freedom of the press. It therefore made various proposals for reform,

both to redress the balance and in order to achieve greater certainty

in the law. In particular, it doubted whether a "prejudgment" test

such as that proposed in the House of Lords was the right one,

considering that it went both too far and not far enough. The

Committee preferred the following test, to be applied in the light of

the circumstances existing at the time of publication : "whether the

publication complained of creates a risk that the course of justice

will be seriously impeded or prejudiced." One member of the committee

remarked that, despite the suppression of the Sunday Times article,

the campaign of protest and pressure over the talidomide tragedy made

a mockery of the law of contempt.

The committee concluded, in particular, that the law of contempt was

required as a means of maintaining the righs of the citizen to a fair

and unimpeded system of justice and protecting the orderly

administration of the law; however, the operation of that law should

be confined to circumstances where the offending act was not within

the definition of any other criminal offence and where the achievement

of that law's objectives required a summary procedure. The law as it

stood contained uncertainties impeding and restricting reasonable

freedom of speech and should be amended and clarified so as to allow

as much freedom of speech as was consistent with the achievement of

the above-mentioned objectives.

The committee recommended, inter alia, that a publication should be

subject to the law of contempt if it created a risk of serious

prejudice (whether intentionally or not) but that this strict

liability should only apply:

(a) if the publication created a risk that the course of justice would

be seriously impeded or prejudiced;

(b) when, in the case of civil proceedings in England and Wales, the

case had been set down for trial;

(c) subject to the availability of a defence that the publication

formed part of a discussion of matters of general public interest and

only incidentally or unintentionally created a risk of serious

prejudice to particular proceedings.

It was also recommended that bringing influence or pressure to bear

upon a party to proceedings should not be held to be a contempt

unless it amounted to intimidation or unlawful threats to his person,

property or reputation.

37. The recommendations contained in the Phillimore report have not

yet been implemented and the Government have made no proposals for

legislation. However, in March 1978, they issued a Green Paper,

intended to provide a basis for Parliamentary and public discussion,

and invited comments which would be taken into account in a decision

on policy. The Green Paper, which draws no conclusions, rehearses the

recommendations of the Phillimore Committee and sets out arguments for

and against certain of them, for example, those relating to the

provision of a defence of "discussion of matters of general public

interest" and to bringing influence or pressure to bear upon a party.

The document does not call in question the suggestion that the

"prejudgment" test referred to in the House of Lords should be

reconsidered.

PROCEEDINGS BEFORE THE COMMISSION

38. In their application, lodged with the Commission on

19 January 1974, the applicants claimed that the injunction, issued by

the High Court and upheld by the House of Lords, to restrain them from

publishing an article in The Sunday Times dealing with thalidomide

children and the settlement of their compensation claims in the United

Kingdom constituted a breach of Article 10 (art. 10) of the

Convention. They further alleged that the principles upon which the

decision of the House of Lords was founded amounted to a violation of

Article 10 (art. 10) and asked the Commission to direct or,

alternatively, to request the Government to introduce legislation

overruling the decision of the House of Lords and bringing the law of

contempt of court into line with the Convention.

39. In its decision of 21 March 1975, the Commission, after describing

the question before it as "whether the rules of contempt of court as

applied in the decision of the House of Lords granting the injunction

are a ground justifying the restriction under Article 10 para. 2

(art. 10-2)", declared admissible and accepted the application.

4O. In their submissions on the merits, the applicants made the

following additional allegations:

- that there had been discrimination contrary to Article 14

(art. 14) of the Convention by reason of the fact that similar press

publications had not been restrained and by reason of the difference

between the rules applicable in Parliament in relation to comment on

pending litigation and the rules of contempt of court applied to the

press;

- that, contrary to Article 18 (art. 18) of the Convention, the

principles of contempt of court, which should be limited to the

maintenance of the independence and impartiality of the judiciary, had

in the applicants' case in fact been applied for the protection of a

litigant and in such a way as to prevent the applicants from

exercising their duties as journalists.

41. In its report of 18 May 1977, the Commission, after deciding that

it could and must deal with the applicants additional allegations,

expressed the opinion:

- by eight votes to five, that the restriction imposed on the

applicants' right to freedom of expression was in breach of Article 10

(art. 10) of the Convention;

- unanimously, that there had been no breach of Articles 14 and 18

read in conjunction with Article 10 (art. 14+10, art. 18+10).

The report contains a joint dissenting opinion by five members of the

Commission.

AS TO THE LAW

I. ON ARTICLE 10 (art. 10)

42. The applicants claim to be the victims of a violation of

Article 10 (art. 10) of the Convention which provides:

"1. Everyone has the right to freedom of expression. This right shall

include freedom to hold opinions and to receive and impart information

and ideas without interference by public authority and regardless of

frontiers. This Article (art. 10) shall not prevent States from

requiring the licensing of broadcasting, television or cinema

enterprises.

2. 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, in the interests of national security,

territorial integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the disclosure

of information received in confidence, or for maintaining the

authority and impartiality of the judiciary."

The applicants allege that this violation arises by reason, firstly,

of the injunction granted by the English courts and, secondly, of the

continuing restraints to which they are subjected as a result of the

over-breadth and lack of precision of the law of contempt of court.

The Commission, in its report, expresses the opinion that there has

been a violation on the first ground. As regards the second ground,

the Principal Delegate submitted also, at the hearing on

24 April 1978, that the injunction was not the only matter which the

Court had to consider under Article 10 (art. 10) and that, despite the

judgment of the House of Lords and indeed because of its ambiguities,

the applicants and other media were continuing victims of the

uncertainty of the law of contempt of court.

The Government maintain that there has been no breach of Article 10

(art. 10).

43. With respect to the second ground, the Court recalls that "its

jurisdiction in contentious matters is limited to applications which

have first of all been lodged with and accepted by the Commission":

"The Commission's decision declaring an application admissible

determines the object of the case brought before the Court; it is only

within the framework so traced that the Court, once a case is duly

referred to it, may take cognisance of all questions of fact or of law

arising in the course of the proceedings" (judgment of 18 January 1978

in the case of Ireland v. the United Kingdom, Series A no. 25, p. 63,

para. 157). In the present case, the Commission, in its decision of

21 March 1975 on the admissibility of the application, specified that

the question before it was "whether the rules of contempt of court as

applied in the decision of the House of Lords granting the injunction

are a ground justifying the restriction under Article 10 (2)

(art. 10-2)". The Commission's examination of the merits of the case

was limited to that very question.

The Court thus concludes that it has to examine only whether there has

been a violation of the Convention by reason of the judgment of the

House of Lords.

44. Originally, the injunction in question was granted by the

Divisional Court and concerned only the draft Sunday Times article

(see paragraph 21 above). It was discharged by the Court of Appeal

(see paragraph 24 above) but the House of Lords restored it and

considerably widened its scope by directing the Divisional Court to

order

"That ... Times Newspapers Ltd., by themselves, their servants, agents

or otherwise, be restrained from publishing, or causing or authorising

or procuring to be published or printed, any article or matter which

prejudges the issues of negligence, breach of contract or breach of

duty, or deals with the evidence relating to any of the said issues

arising in any actions pending or imminent against Distillers ...

in respect of the development, distribution or use of the drug

'thalidomide'."

45. It is clear that there was an "interference by public authority"

in the exercise of the applicants' freedom of expression, which is

guaranteed by paragraph 1 of Article 10 (art. 10-1). Such an

interference entails a "violation" of Article 10 (art. 10) if it does

not fall within one of the exceptions provided for in paragraph 2

(art. 10-2) (Handyside judgment of 7 December 1976, Series A no. 24,

p. 21, para. 43). The Court therefore has to examine in turn whether the

interference in the present case was "prescribed by law", whether it

had an aim or aims that is or are legitimate under Article 10 (2)

(art. 10-2) and whether it was "necessary in a democratic society" for

the aforesaid aim or aims.

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) (art. 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.

48. The expression "prescribed by law" appears in paragraph 2 of

Articles 9, 10 and 11 (art. 9-2, art. 10-2, art. 11-2) of the

Convention, the equivalent in the French text being in each case

"prévues par la loi". However, when the same French expression appears

in Article 8 (2) (art. 8-2) of the Convention, in Article 1 of

Protocol No. 1 (P1-1) and in Article 2 of Protocol No. 4 (P4-2),

the English text as "in accordance with the law", "provided for by

law" and "in accordance with law", respectively. Thus confronted with

versions of a law-making treaty which are equally authentic but not

exactly the same, the Court must interpret them in a way that

reconciles them as far as possible and is most appropriate in order to

realise the aim and achieve the object of the treaty (see the Wemhoff

judgment of 27 June 1968, Series A no. 7, p. 23, para. 8, and

Article 33 para. 4 of the Vienna Convention of 23 May 1969 on the Law of

Treaties).

49. In the Court's opinion, the following are two of the requirements

that flow from the expression "prescribed by law". Firstly, 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 comtempt of

court (the "pressure principle"; see paragraph 23 above). 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";

see paragraphs 29 to 33 above).

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. who is reported as saying before the

Divisional Court: "Even if it applies pressure to a party, the article

is not contempt at all because [the higher public interest] overcomes

any question of wrongdoing. Alternatively, if the article is prima

facie contempt, the higher public interest provides a defence against

what would otherwise be contempt." Again, Lord Justice Phillimore in

the Court of Appeal referred to "the mass of authority ... showing

that an attempt to stir up public feeling against a party is a serious

contempt".

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. In Vine Products Ltd.

v. Green (1966), Mr. Justice Buckley had formulated the law in this

way: "It is a contempt of this court for any newspaper to comment on

pending legal proceedings in any way which is likely to prejudice the

fair trial of the action. That may arise in various ways. It may be

that the comment is one which is likely in some way or other to bring

pressure to bear upon one or other of the parties to the action, so as

to prevent that party from prosecuting or from defending the action,

or encourage that party to submit to terms of compromise which he

otherwise might not have been prepared to entertain, or influence him

in some other way in his conduct in the action, which he ought to be

free to prosecute or to defend, as he is advised, without being

subject to such pressure."

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" (see paragraph 18 above). Nevertheless, the

Court has also noted the following:

- in the applicants' memorial, it is submitted (paragraph 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 (see paragraph 36 above) 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

comtempt";

- the third edition (current in 1972) of Halsbury's Laws of England

(vol. 8, pp. 7 et seq., paragraphs 11-13) 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 ... It is a contempt to

publish an article in a newspaper commenting on the proceedings in a

pending ... civil action ... In such cases the mischievous tendency of a

trial by the newspapers when a trial by one of the regular tribunals

of the country is going on is to be considered ... On the other hand,

the summary jurisdiction [to punish contempt] ought only to be

exercised when it is probable that the publication will substantially

interfere with a fair trial."

As regards the formulation of the "prejudgment principle", the Court

notes that reference was made in the House of Lords to various

authorities and, in particular, to Hunt v. Clarke (1889), where Lord

Cotton had stated the law in this way: "If any one discusses in a

paper the rights of a case or the evidence to be given before the case

comes on, that, in my opinion, would be a very serious attempt to

interfere with the proper administration of justice. It is not

necessary that the court should come to the conclusion that a judge or

jury will be prejudiced, but if it is calculated to prejudice the

proper trial of a cause, that is a contempt, and would be met with the

necessary punishment in order to restrain such conduct." Moreover, the

editor of The Sunday Times said in his affidavit filed in the

Divisional Court proceedings: "... I was given legal advice that the

[proposed] article ... was in a category different from that of the

articles published hitherto in that in addition to presenting

information which strengthened the moral argument for a fairer

settlement it included evidence which related to the issue of

liability in the pending thalidomide proceedings."

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" within the meaning of Article 10 (2)

(art. 10-2).

B. Did the interference have aims that are legitimate under

Article 10 para. 2 (art. 10-2)?

54. In the view of the applicants, the Government and the minority of

the Commission, the law of contempt of court serves the purpose of

safeguarding not only the impartiality and authority of the judiciary

but also the rights and interests of litigants.

The majority of the Commission, on the other hand, whilst accepting

that the law of contempt has the general aim of securing the fair

administration of justice and that it thereby seeks to achieve

purposes similar to those envisaged in Article 10 (2) (art. 10-2)

where it speaks of maintaining the authority and impartiality of the

judiciary, considered that it was not called upon to examine

separately whether that law has the further purpose of protecting the

rights of others.

55. The Court first emphasises that the expression "authority and

impartiality of the judiciary" has to be understood "within the

meaning of the Convention" (see, mutatis mutandis, the König judgment

of 28 June 1978, Series A no. 27, pp. 29-30, para. 88). For this purpose,

account must be taken of the central position occupied in this context

by Article 6 (art. 6), which reflects the fundamental principle of

the rule of law (see, for example, the Golder judgment of

21 February 1975, Series A no. 18, p. 17, para. 34).

The term "judiciary" ("pouvoir judiciaire") comprises the machinery of

justice or the judicial branch of government as well as the judges in

their official capacity. The phrase "authority of the judiciary"

includes, in particular, the notion that the courts are, and are

accepted by the public at large as being, the proper forum for the

ascertainment of legal rights and obligations and the settlement of

disputes relative thereto; further, that the public at large have

respect for and confidence in the courts' capacity to fulfil that

function.

It suffices, in this context, to adopt the description of the general

purposes of the law of contempt given by the Phillimore report.

As can be seen from paragraph 18 above, the majority of the categories

of conduct covered by the law of contempt relate either to the

position of the judges or to the functioning of the courts and of the

machinery of justice: "maintaining the authority and impartiality of

the judiciary" is therefore one purpose of that law.

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 (see paragraphs 29 to 33 above) 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" as interpreted by

the Court in the second sub-paragraph of paragraph 55 above.

Accordingly, the interference with the applicants' freedom of

expression had an aim that is legitimate under Article 10 (2)

(art. 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 is of the

opinion that the said interference was not "necessary" within the

meaning of Article 10 (2) (art. 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) (art. 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"

(p. 22, para. 48).

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) (art. 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" (p. 22, para. 48).

"Nevertheless, Article 10 (2) (art. 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 (art. 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" (ibid., p. 23, para. 49).

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 (art. 10) the decisions

they delivered in the exercise of their power of appreciation" (ibid.,

p. 23, para. 50).

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 (pp. 21-22,

para. 47).

Again, the scope of the domestic power of appreciation is not

identical as regards each of the aims listed in Article 10 (2)

(art. 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" (p. 22, para. 48).

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 (art. 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.

In the different, but to a certain extent comparable, contexts of

Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1), the Court has on

occasion reached conclusions different from those of the national

courts on matters in respect of which the latter were also competent

and qualified to make the initial assessment (Neumeister judgment of

27 June 1968, Series A no. 8, pp. 9-15 and 38-40; Stögmüller judgment

of 10 November 1969, Series A no. 9, pp. 11-24, 39 and 43-44;

Ringeisen judgment of 16 July 1971, Series A no. 13, pp. 24-34 and

42-44; König judgment of 28 June 1978, Series A no. 27, pp. 16 in

fine, 22, 23-24 and 33-40).

60. Both the minority of the Commission and the Government attach

importance to the fact that the institution of contempt of court is

peculiar to common-law countries and suggest that the concluding words

of Article 10 (2) (art. 10-2) were designed to cover this institution

which has no equivalent in many other member States of the Council of

Europe.

However, even if this were so, the Court considers that the reason for

the insertion of those words would have been to ensure that the

general aims of the law of contempt of court should be considered

legitimate aims under Article 10 (2) (art. 10-2) but not to make that

law the standard by which to assess whether a given measure was

"necessary". If and to the extent that Article 10 (2) (art. 10-2)

was prompted by the notions underlying either the English law of

contempt of court or any other similar domestic institution, it cannot

have adopted them as they stood: it transposed them into an autonomous

context. It is "necessity" in terms of the Convention which the Court

has to assess, its rôle being to review the conformity of national

acts with the standards of that instrument.

In addition, the Court exercises its supervision in the light of the

case as a whole (above-mentioned Handyside judgment, p. 23, para. 50).

Accordingly, it must not lose sight of the existence of a variety of

reasoning and solutions in the judicial decisions summarised at

paragraphs 22 to 35 above, of extensive debates in England on the law

of contempt of court and of proposals for reform. As regards the

latter, the Court observes that, although the Government Green Paper

sets out arguments for and against certain of the recommendations of

the Phillimore Committee, it does not call in question the suggestion

that the "prejudgment" test referred to in the House of Lords should

be reconsidered (see paragraph 37 above).

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 judgment of

9 February 1967 in the "Belgian Linguistic" 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" (Series A no. 5 p. 19). 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 (see, mutatis

mutandis, judgment of 23 July 1968 in the "Belgian Linguistic" case,

Series A no. 6, pp. 34-35).

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) (art. 10-2)" (above-mentioned

Handyside judgment, pp. 22-24, paras. 48-50). 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 (see

paragraph 44 above). 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 (see paragraph 29, second sub-paragraph, above). 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 (see paragraphs 13 and 14 above).

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 (see paragraph 55 above). 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 pseudo-trials

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 impinge 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) (art. 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) (art. 10-2) than preventing

interference with a procedural situation in the strictly forensic

sense. The same applies to the procedure for judicial approval of a

settlement (see paragraph 9 above). 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 - by reference, incidentally, to the

"pressure principle" rather than the "prejudgment principle" (see

paragraph 35 above). 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 (see paragraph 16

above). 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 (art. 10-2), 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

(p. 23, para. 49).

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 (see, mutatis mutandis, the Kjeldsen, Busk

Madsen and Pedersen judgment of 7 December 1976, Series A no. 23,

p. 26, para. 52).

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 (see paragraphs 29, 32 and 33 above). Whilst

emphasising that it is not its functio