The Sunday Times v. United Kingdom

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					The Sunday Times v. United
        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
• 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
• On 24 September 1972, The Sunday Times carried an
  article entitled 'Our Thalidomide Children: A Cause for
  National Shame' : this examined the settlement
   – 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
   – 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
• 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
        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
          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
        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

• 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

• 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

• 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

• 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
  – 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.