Page 129 - Law and the Media

Law and the Media
wide. By the time the case reached trial, Spycatcher had also been published in Canada,
Australia, Ireland and Europe, and could be freely imported into the United Kingdom. The
trial judge, the Court of Appeal and eventually the House of Lords all decided that a
permanent injunction should not be ordered against the newspapers, largely because of the
widespread distribution of the book (A-G v Guardian Newspapers Ltd (No 2) (1990)).

Section 12 of the Human Rights Act 1998 (‘the HRA’) would, in all likelihood, prevent a
recurrence of the Spycatcher scenario. Under Section 12(4)(a)(i) of the HRA, the court must
have regard to the extent to which the information has already or is about to become
available to the public.

However, the English courts can only control what happens in England and Wales. The ease
with which information can be communicated across borders in modern society can often
make a mockery of English court injunctions relating to confidential material. In 1986 an
injunction was granted preventing publication of Joan Miller’s MI5 memoirs, One Girl’s
War. However, anyone could obtain a copy of the book by taking a trip to Dublin. The Irish
courts refused to grant the Government’s application for an injunction because of the free
speech provision of the Irish Constitution. In 1988 an injunction was granted preventing
English newspapers from publishing certain parts of the autobiography of former MI6 officer
Anthony Cavendish. However, as a result of a ruling by a Scottish court, Scottish newspapers
were free to publish the material. In 1992 Paddy Ashdown, then the leader of the Liberal
Democrat party, obtained an injunction against the News of the World preventing publication
of information relating to an affair with his secretary on the grounds that it had been obtained
from a confidential memorandum prepared by his solicitor. The order was a blanket ban on
all facts and all names. In order to ensure universal compliance, a copy of the order was
served on every other newspaper. Media reaction ranged from extreme concern to total
outrage at the extent of the legal censorship. Within one week, the Scotsman had published
the full story. As it was a wholly Scottish newspaper, it was not subject to the orders of the
High Court in London and Ashdown could do nothing to prevent publication.

Confidentiality can be lost with the passage of time or a change in circumstances. In A-G v
Jonathan Cape (1976) the Government applied to prevent publication of the Crossman
Diaries, records of the career of former Cabinet minister Richard Crossman. The Government
argued that it was in the public interest to prevent publication of the diaries because publication
would deter the frankness required in Cabinet discussions for the effective running of
Government. The court refused an injunction. It held that the confidentiality of the discussions
had been lost because the information was several years old.

6.2.3 Circumstances imposing an obligation of confidence

Agreement
An obligation of confidence can arise by the terms of an agreement, whether in written or
oral form.
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