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Attorney General v Guardian Newspapers Ltd (No 2)
Factual and Procedural Background
Individual A, a former senior member of the United Kingdom Security Service, wrote memoirs (published overseas as “Spycatcher”) disclosing operational details of the Service. The Appellant (the Attorney General) sought to restrain publication worldwide and, when foreign publication proved impossible to stop, pursued domestic injunctions against three news organisations—Company B (“The Observer”), Company C (“The Guardian”) and Company D (“The Sunday Times”). High Court and Court of Appeal proceedings produced divided results on five confidentiality-related issues. The Appellant appealed on the points lost below; Company D cross-appealed on an order requiring it to account for profits. The House of Lords heard conjoined appeals and, on 13 October 1988, delivered the present judgment.
Legal Issues Presented
- Whether Company B and Company C breached confidentiality by publishing articles on 22–23 June 1986 that previewed the Australian litigation.
- Whether Company D breached confidentiality by printing the first extract from “Spycatcher” on 12 July 1987.
- Whether the Appellant was entitled to permanent injunctions against (a) Companies B and C and (b) further serialisation by Company D.
- Whether Company D should account to the Crown for profits earned from the 12 July 1987 publication.
- Whether a general “anticipatory” injunction should restrain all three newspapers from any future publication of information derived from present or former Security Service staff.
Arguments of the Parties
Appellant’s Arguments
- Members and ex-members of the Security Service owe a lifelong duty of confidence to the Crown; that duty survives even when the confidant himself destroys secrecy by wrongful disclosure.
- Any third party who knows the information was obtained in breach of that duty is likewise bound and can be restrained, regardless of overseas publication.
- Continuing publication in the United Kingdom would damage national security by eroding allied trust, lowering Service morale and encouraging further leaks.
- Company D should disgorge profits because equity will not permit a wrongdoer to benefit from breach of confidence.
Respondents’ Arguments
- Once “Spycatcher” entered the public domain through worldwide sales, the information ceased to be confidential; domestic injunctions would be futile and disproportionate.
- Company D’s single July 1987 extract, although prior to United States publication, cannot justify an ongoing ban now that full global disclosure has occurred.
- Account of profits is inappropriate where the Crown suffers no quantifiable loss and where Company D has already faced commercial and reputational consequences.
- The broad “second-line” injunction sought by the Crown would chill legitimate journalism and violate the public interest in open debate.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Saltman Engineering v. Campbell Engineering (1948) 65 R.P.C. 203 | Equitable obligation of confidence may exist independently of contract. | Used to show that Security Service staff owe duties beyond contractual terms. |
| Seager v. Copydex [1967] 1 W.L.R. 923 | Misuse of confidential information justifies relief even absent direct financial loss. | Cited when discussing detriment and remedy. |
| Duchess of Argyll v. Duke of Argyll [1967] Ch 302 | Privacy-based injunction; duty extends to third-party newspapers. | Analogy for restraining press where secrets remain private. |
| Prince Albert v. Strange (1849) 1 Mac. & G. 25 | Third parties acquiring secrets in breach of confidence are bound in conscience. | Supported Appellant’s claim that newspapers inherited Wright’s duty. |
| Attorney General v. Jonathan Cape [1976] Q.B. 752 | Government must show publication harms public interest, not merely breach confidence. | Relied on to assess whether post-publication injunctions were justified. |
| Commonwealth of Australia v. John Fairfax (1980) 147 C.L.R. 39 | State secrets protected only if disclosure is likely to injure public interest. | Adopted in weighing national-security arguments after global dissemination. |
| Coco v. A.N. Clark [1969] R.P.C. 41 | Three elements of breach of confidence; discussion of “detriment”. | Framework for analysing whether Crown proved necessary elements. |
| Peter Pan Manufacturing v. Corsets Silhouette [1969] 1 W.L.R. 96 | Account of profits as equitable remedy for breach of confidence. | Basis for ordering Company D to disgorge July 1987 profits. |
| Reading v. Attorney General [1951] A.C. 507 | No profit from own wrongdoing; constructive trust principles. | Reinforced duty on Company D to account. |
| Gartside v. Outram (1857) 26 L.J.Ch. 113 | “No confidence in iniquity” doctrine. | Explained limits where public-interest disclosure overrides secrecy. |
| Initial Services v. Puttill [1968] 1 Q.B. 396 | Public-interest defence to breach-of-confidence claims. | Discussed but held inapplicable to large-scale disclosure of operational secrets. |
| Beloff v. Pressdram [1973] 1 All E.R. 241 | Balancing test between confidentiality and public interest. | Applied in evaluating newspaper defences. |
| Lion Laboratories v. Evans [1985] Q.B. 526 | Limited disclosure may satisfy public interest without mass publication. | Contrasted with papers’ wholesale quotations from “Spycatcher”. |
| Francome v. Mirror Group Newspapers [1984] 1 W.L.R. 892 | Appropriate channels for limited disclosure. | Illustrated alternatives to immediate press publication. |
| Moorgate Tobacco v. Philip Morris (No 2) [1984] 156 C.L.R. 414 | Breach of confidence as obligation of conscience. | Cited in abstract discussion of equitable principle. |
| Terrapin v. Builders’ Supply (“Springboard” case) [1967] R.P.C. 375 | “Springboard” doctrine—blocking unfair head-start after misuse. | Raised in debate over continuing restraints on Company D. |
| O. Mustad & Son v. Dosen [1964] 1 W.L.R. 109 | Confidant released when confider puts information into public domain. | Used by minority to question perpetual duties. |
| Cranleigh Precision v. Bryant [1965] 1 W.L.R. 1293; Speed Seal v. Paddington [1985] 1 W.L.R. 1327 | Limits of release when publication stems from third parties. | Discussed but distinguished by majority. |
| Attorney General v. Wellington Newspapers (NZ C.A., 28 Apr 1988) | Foreign approach to protecting allied intelligence secrets. | Cited to contrast with Australian stance. |
| Snepp v. United States (1980) 444 U.S. 507 | U.S. civil enforcement of secrecy agreements. | Illustrated potential for international comity on intelligence secrecy. |
| Glyn v. Western Feature Film [1916] 1 Ch 261 | Court may refuse copyright aid where publication is contrary to public interest. | Suggested that Individual A could not sue on copyright in UK courts. |
| Slingsby v. Bradford Patent Truck & Trolley Co. [1905/1906] | Equity denies assistance to fraudulent works. | Analogous to refusal of copyright protection for “Spycatcher”. |
| Bile Bean Manufacturing v. Davidson (1906) 23 R.P.C. 725 | Refusal of relief where claimant engaged in fraud. | Similar rationale for denying copyright to Individual A. |
Court's Reasoning and Analysis
Judge Keith (with Judges Brightman, Griffiths, Goff and Jauncey concurring) applied classic confidentiality principles. The bench accepted that Individual A owed a lifelong duty, yet held that widespread foreign publication had already destroyed the secrecy necessary to support further restraints. The Crown’s national-security evidence, supplied by Official A, was found speculative once the material was globally available. The Court distinguished between first disclosure (where injunctions are normally justified) and subsequent domestic reporting of material now in the public domain, concluding that the latter posed no incremental threat.
On Issue 2, the Court affirmed that Company D’s 12 July 1987 extract breached confidence because, at that moment, worldwide publication had not yet occurred. Equity therefore required an account of profits. However, extension of that remedy to future instalments was rejected: any new serialisation would merely repeat information already accessible and would not prejudice national security.
The Court declined the Crown’s request for a sweeping prospective injunction. Such prior restraint would gag legitimate journalism, overlook possible future public-interest justifications, and force contempt proceedings to test every allegation. Instead, existing legal doctrines—breach of confidence, copyright (where applicable) and criminal law—were deemed adequate safeguards.
Holding and Implications
ORDER AFFIRMED; APPEALS AND CROSS-APPEAL DISMISSED.
Immediate Effect:
- No permanent injunctions issue against Companies B, C or D; they may report and comment on “Spycatcher” subject only to ordinary copyright limits and future lawful considerations.
- Company D must account to the Crown for profits derived from its 12 July 1987 publication.
Broader Implications:
- Confirms that Security Service personnel owe lifelong duties of confidence, but post-breach restraints must still satisfy a public-interest test when secrets are already in the public domain.
- Clarifies that Government seeking civil restraint bears the burden of proving incremental detriment to national security.
- Re-affirms account of profits as an available equitable remedy and hints that courts may deny copyright enforcement where publication itself contravenes public interest.
- Sets no new precedent on prior restraint but accentuates the difficulty of controlling information once globally disseminated.
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