The Sunday Times v. United Kingdom By: Fay Sarah Hussain The Sunday Times v. UK • Date of Judgement: April 26, 1979 • Applicants: the publisher, editor and a group of journalists of The Sunday Times • State: United Kingdom 5 Keywords – Prior restraint – Contempt of court – Trial by newspaper – Injunction order – Presumption of Innocence Facts • Between 1958 and 1961, Distillers Company (Biochemicals) Ltd. manufactured and marketed drugs for pregnant women in the United Kingdom. • Women who took these drugs gave birth to children with deformities believed to be caused by an ingredient called thalidomide. • Parents of the deformed children sought writs against Distillers. Distillers settled with some in 1968, but by 1971, 389 more claims were pending against Distillers. • Distillers proposed to establish a charitable trust fund for all the deformed children not covered by the 1968 settlement. Facts • On 24 September 1972, The Sunday Times carried an article entitled 'Our Thalidomide Children: A Cause for National Shame' : this examined the settlement proposals: – Described 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. • A footnote to the article announced that it would trace how the tragedy occurred in a future article Domestic Proceedings • After Distillers made a formal complaint that the article of Sept 24 1972 constituted contempt of court in view of pending litigation, Attorney General issued writ against Times Newspapers. • The Divisional Court of the Queen's Bench Division granted the Attorney-General's application for an injunction restraining publication of the future article noted in the footnote on the ground that it would constitute contempt of court. Contempt of Court • Under a contempt of court sanction, courts may prevent or punish conduct which obstructs, prejudices or abuses the administration of justice in a particular case or generally. • It exists to protect the administration of justice and "the fundamental supremacy of the law." • The rules of contempt should not inhibit freedom of speech more than reasonably necessary. Decision of the Divisional Court • Granted injunction on November 17, 1972. • Reasoning: – Time’s article might prevent due and impartial administration of justice by prejudicing the free choice and conduct of a party to the litigation. – The Sunday Times’ motive was to enlist public opinion to exert pressure on Distillers and cause them to make a more generous settlement. This was a deliberate attempt to influence the settlement of pending proceedings and thus 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. Decision of the Court of Appeal • Court of Appeal discharged the injunction. • Reasoning: • Proposed article did not create a risk of prejudice for any pending litigation because litigation had been dormant for years. • Court differentiated between litigation and settlement negotiations under contempt of court laws. • Balance public interest in matter of national concern with right to fair trial and settlement – In this case, public interest to information outweighed prejudice to parties Decision of the House of Lords • House granted injunction on July 18, 1973 after reviewing the draft article on the finding that there would be a contempt of court had the article been published • Also stated that: – The Court of Appeal had wrongly described the actions as ' dormant‘ , since settlement negotiations were in hand, in turn exerting improper pressure on the distillers to settle for a higher claim hence constituting contempt of court. House of Lords Decision • Emphasized that a balance must be struck between the public interest in freedom of speech and the public interest in protecting the administration of justice from interference • There should not be a 'trial by newspaper' , – the courts … owe it to the parties to protect them either from the prejudices of prejudgment or participation in pre-trial publicity. Article 10 • 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. • The exercise of these freedoms... may be subject to... conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of ... maintaining the authority and impartiality of the judiciary. Violation of Article 10? • The applicants claim to be the victims of a violation of Article 10 of the Convention They allege that this violation arises: – Firstly, by the injunction granted by the English courts – Secondly, due to the over-breadth and lack of precision of the law of contempt of court. • The Commission found a violation on the first ground. • As regards the second ground, the Commission found the applicants and other media were continuing victims of the uncertainty of the law of contempt of court. Exceptions to Article 10 • Article 10(2) provide exceptions and restricts the right to freedom of speech. It presupposes a definition in domestic law which is sufficiently clear and unambiguous, thus permitting anyone exercising his freedom of expression to act with reasonable certainty as to the consequences in law of his conduct. Was the interference 'prescribed by law'? • ‘Prescribed by law' : – The law must be adequately accessible – 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 to foresee the consequences which a given action may entail. • The applicants argue, inter alia , that the law of contempt of court, was so vague and uncertain that the restraint imposed cannot be regarded as 'prescribed by law'. The Government plead, in the alternative, that on the facts of the case the restraint was at least 'roughly foreseeable' . ECtHR Decision • 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 ‘pressure principle’ • Certain members of the House of Lords also alluded to this principle, whereas others preferred the prejudgment principle • Nevertheless, the Court has also noted that the “ prejudgment principle” never before constituted the ratio of an English judicial decision in a comparable case ' Was the injunction 'necessary' for maintaining the authority and impartiality of the judiciary and/or for protecting the rights of others? • Discussions and comments relating to the issue of negligence were directly or indirectly ventilated in the press for ten years and had recently been commented on in Parliament, which did not treat the issues involved as sub judice . Therefore it could not be accepted that Distillers would have been brought under pressure. It was also noted that if there had been a proper testing of the drug before marketing, they could easily have proved it and rebutted the allegation of negligence. • The European Court also expressed the view that the standard of the judiciary in England is too high to be influenced by any publication of the press. It followed that the grant of an injunction was therefore not necessary under Article 10(2) Dissenting Opinions . • In the dissenting opinion they believe that the House of Lords decision was correct and the injunction only went as far as necessary. • It is for the national authorities to make the initial assessment of the danger and to judge what restrictive measures are necessary. In this case it is undeniable that it should be a decision for the House of Lords as they are better qualified. • The article was of a special character as it contained new information and gave evidence that was presented in a way to suggest there was negligence on the part of the Distillers, and so was more likely to give rise to prejudgment. Dissenting Opinions • The national court was in a better position to decide how likely a decision was in the case of the parents who refused to settle, and therefore how dormant the case was. • The restriction was only in relation to the scope of the subject matter and duration of the case, it was not a general restraint on the discussion of the issue. • The House of Lords foresaw that the situation surrounding the restraint could change and so it could be withdrawn in the future. Comparative Analysis Tourancheau and July v France, 24 November 2005 • Pre-trial publicity, secret of criminal investigation, court reporting, prejudicial effect on jury • Tourancheau published an article about a murder case, which was still under investigation, which contained extracts from the suspects’ statements and other comments contained in the case file. Comparative Analysis • Section 38 of the Press Act 1881 prohibits the publication of any document of criminal proceedings until the day of the hearing in court. • Tourancheau and the daily newspaper were found guilty, and both suspects had been convicted in the murder case and sentenced to imprisonment. • In this case the Court found that the conviction of Tourancheau and the newspaper was not a violation of Article 10. This was because the scope of the prohibition was clearly defined in s. 38 Press Act 1881, in terms of both content and duration. Comparative Analysis • The Court agreed with the French courts justification for the conviction, that it was necessary in a democratic society of protecting the right and reputation of others and to maintain the authority and impartiality of the judiciary, and that the interest of the public in receiving such information was not enough to override those considerations. • However in this case it was the smallest possible majority judgment, and the dissenting judges did not think that the breach of presumption of innocence or the impact on the impartiality of the judiciary was enough to allow the conviction to stand, and took a similar view to that in The Sunday Times case. Comparative Analysis with the US • News media are ordinarily free to publish information lawfully obtained • Heavy presumption against the validity of prior restraints – Prior restraints are “the most serious and the least tolerable infringement on First Amendment rights” – Sustained only where activity poses clear and present danger or serious and imminent threat to competing governmental interest, ie assuring accused a fair trial Nebraska Press Association v. Stuart • 1st Amendment right to free press v. defendant’s 6th Amendment right to fair trial • Supreme Court struck down order prohibiting media from publishing information about defendant accused of murdering family • There is a heavy burden on the party seeking to restrain the press. • The Court looked at – 1)"the nature and extent of the pretrial news coverage." – 2) whether other less restrictive measures would have alleviated the effects of pretrial publicity. – 3) the effectiveness of an injunction in preventing the threatened danger.