Content Regulation / Censorship, National Security, Commercial Speech
The Case of the Kyaw Printing House
Closed Expands Expression
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The European Court of Human Rights reasoned that injunctions can be rendered useless due to publications in other countries, where the jurisdiction does not extend to cover their publications. Furthermore, injunctions granted to a single publisher can also cover other publishers, as it would frustrate the reason for the injunction, and they could be in contempt of court for their actions. Ultimately, the Court held that the injunction in this case violated Article 10 of the European Convention on Human Rights.
This case came before the European Court of Human Rights in the early 1990s concerning the publication of a book, Spycatcher, written by Peter Wright which discussed his memoirs and his work as a senior member of the British Security Service (MI5). [para. 11] The information contained in the book had been discussed in other forums, including another memoir published about the topic and a television interview that Wright had participated in.
Wright was living in Australia and so he tried to get the book published in that country. However, the Attorney General of England and Wales attempted to prevent the book’s publication and began litigation proceedings in the Australian courts arguing that the material of the book concerned “allegations of improper, criminal and unconstitutional conduct on the part of MI5 officers,” and thus should be prohibited. [para. 14] The outcome of these proceedings was the court held that the material in Spycatcher was not entirely confidential since there had been other allegations made from other officers, thus, the publication of the book “would not be detrimental to the British Government or the Security Service.” [para. 21]
At the same time, in the United Kingdom proceedings were initiated against the Observer and the Guardian which resulted in the Court of Appeal upholding injunctions against the publication of the allegations against the Security Service. Despite these initial injunctions, on July 12, 1987, The Sunday Times published “the first installment of extracts from Spycatcher,” which actually coincided “with publication of the book in the United States.” [para. 27] The book then became available in the United Kingdom through purchase by telephone or mail from American bookshops.
Because of the availability of the book and the information contained within it, the Court of Appeal reversed its earlier judgment and held that the injunctions were no longer necessary. In light of this, The Sunday Times decided to “publish the second installment of the serialisation of Spycatcher.” [para. 32] However, the Attorney General issued other proceedings against The Sunday Times which resulted in the Court of appeals holding that while the original injunction was not necessary in its original format, although the injunction should still remain in effect so as to “restrain publication in the course of business of all or part of the book or other statements by or attributed to Mr. Wright on security matters.” [para. 34]
This matter came before the European Court of Human Rights and concerned whether maintaining the interlocutory injunction from the British Court of Appeal, despite all the backdoor publications and revelation of the information in the book, violated Article 10 of the European Convention on Human Rights (“ECHR”).
The Court held that the injunction against the publication of the book did violate Article 10 because it was not necessary in a democratic society, i.e. the injunction was no longer sufficient in balancing national security interests versus freedom of expression after all the subsidiary publications had essentially published the same type of information that Spycatcher contained. The Court reasoned that while “injunctions were sought at the outset, inter alia, to preserve the secret character of information that ought to be kept secret,” this was not necessary once the material was no longer secret particularly in light of its publication in the United States. [para. 55]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The action taken by the AG could have a chilling effect on authors. The extent of pursuing injunctions, overseas proceedings and quick action with regards to all the publishers could deter authors from expressing or writing about concerns. The courts must be careful in balancing the public interest and confidentiality issues that could arise from the unpublished works. The effect of the injunctions by the courts were rendered ineffective with the published works overseas, and the knowledge was already readily available, hence the injunction that remained in force until the commencement of the substantive trial in the breach of confidence actions on November 23, 1987, did not make practical sense.
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