Attorney General v Guardian Newspapers Ltd (No 2)

The Crown cannot obtain injunctive relief to restrain publication of purported government secrets unless it shows that disclosure would be harmful to the public interest.

Once information has entered the public domain so widely that it is no longer confidential, the equitable duty of confidence normally ceases and general prohibitions on third parties are inappropriate.

A third party who knowingly publishes material obtained in breach of confidence may be liable and an account of profits remains an available remedy for wrongful exploitation.

The appeals concerned attempts by the Attorney-General to restrain publication in the United Kingdom of the book "Spycatcher" and related press publications. The book was written by a former security-service officer and had been published abroad following earlier proceedings in New South Wales and the High Court of Australia. The Crown sought injunctions and an account of profits against three newspapers which had reported, commented on, or serialised the work. The case reached the House of Lords after trial in the High Court (Scott J) and appeal to the Court of Appeal ([1988] 2 W.L.R. 805). The central issue was whether and when equity will protect government confidential information and when the public interest permits disclosure.

1. Disposition: The appeals and cross-appeal were dismissed. The Crown failed to obtain the permanent injunctions it sought. (Outcome: appeals dismissed.)
2. The Crown must establish that publication of government information would be harmful to the public interest before equity will restrain disclosure. Mere confidentiality alone is not enough where public-interest considerations point the other way. ([1976] Q.B. 752 and (1980) 147 C.L.R. 39 considered and applied.)
3. Where material has been so widely disseminated abroad that it has entered the public domain in this country, the confidential quality is ordinarily destroyed and injunctive relief against third parties is inappropriate. The court declined to maintain an injunction against newspapers whose reporting and comment would not enlarge the public-interest harm already done.
4. A third party who knowingly receives and publishes information obtained in breach of confidence may be liable. The liability of third parties depends on the facts, including the degree of association with the original breach.
5. An account of profits remains an available equitable remedy against a third party who has wrongly exploited confidential information for gain. The House of Lords held that the Sunday Times had been in breach on its first instalment and was liable to account for profits from that publication. The court refused, however, to prevent further serialisation by press generally once the material was in the public domain, except in cases where a publisher had actively associated itself with the original wrongdoing.
6. Practical guidance: injunctions are aimed at preventing a specific wrong. They are not apt to punish a confidant for past breaches once the subject matter is irrevocably public. Claims based on national security require careful balancing of the competing public interests and a showing of prospective harm.
7. Orders: The interlocutory injunctions against the Observer and Guardian were discharged. The claim for an account against the Sunday Times in respect of the first instalment was recognised; however, general prohibitions on further publication were refused save where a publisher is so closely tainted by the original breach that equity should treat it as in the shoes of the confidant.

• House of Lords dismissed the Attorney-General's appeals and the cross-appeal of The Sunday Times. (Judgment: 13 October 1988.)
• Court of Appeal (majority) below: reported at [1988] 2 W.L.R. 805. Issues were remitted to this court by appeal.
• High Court (Scott J) trial judgment reported at [1988] 2 W.L.R. 805 (trial findings adopted and considered).