Attorney General v Times Newspapers Ltd (No 4)

A restraint on publishing confidential information cannot be maintained once prior publication has brought the information into the public domain. The relevant question is whether publication has occurred to such an extent that confidentiality has been lost, rather than whether the material has appeared in a publication formally accessible to the public or has received universal attention.

Where a publication is subject to an undertaking containing a public-domain exception, the editor should ordinarily determine whether the condition is satisfied. The court should not impose a requirement that the editor obtain prior clearance from the Attorney General or the court. Such a requirement would impose an unjustified additional fetter on freedom of expression.

In 1996, Times Newspapers Ltd gave an undertaking not to publish confidential information obtained from a former officer of the Secret Intelligence Service. The undertaking contained exceptions for information previously published, but its wording was confined and later became unsatisfactory when the officer’s book was expected to be published abroad.

Eady J permitted variation of the undertaking so that republication would be allowed where information had previously been published to such an extent that it was in the public domain. The Attorney General appealed, principally seeking a further condition requiring the defendants to demonstrate, before publication, that the information had entered the public domain or to obtain confirmation from the Attorney General or the court.

1. Appeal dismissed. The agreed variation of the undertaking was approved, but without the additional condition sought by the Attorney General.
2. The governing principles were those established in Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109. A restraint on publication must rest on an actionable breach of confidence. Once information has been published elsewhere to such an extent that it is no longer confidential, the action cannot succeed. The phrase public domain appropriately describes the point at which confidentiality is lost.
3. The agreed formulation, permitting republication where the information had previously been published in another publication or through electronic media to such an extent that it was in the public domain, properly reflected that principle. It avoided both an unduly narrow test based on formal accessibility and an unduly wide test based merely on publication somewhere in the world.
4. The court rejected the proposed requirement that the defendants demonstrate the public-domain condition before publication, effectively requiring prior clearance from the Attorney General or the court. An editor is capable of forming the necessary judgment and must remain responsible for it. If the judgment is wrong, the undertaking and the sanctions for contempt remain available.
5. The additional fetter was inappropriate. It created serious practical difficulties and was inconsistent with the importance of freedom of expression under Article 10 of the Convention and section 12 of the Human Rights Act 1998. Consultation with SIS representatives was desirable where publication might damage the Service or endanger individuals, but prior confirmation could not properly be imposed.

Lord Justice Tuckey and Lord Justice Longmore agreed with Lord Phillips MR. The appeal was dismissed with costs payable forthwith.

• Court of Appeal: The appeal from Eady J was dismissed. The variation of the undertaking was upheld without a requirement for prior demonstration or clearance.
• Queen’s Bench Division: On 19 January 2001 Eady J granted permission to vary the undertaking and stayed the order pending appeal.