OPINION: Memoir of a former AG: Could the publication be prevented? – Part 2

The following article is submitted to the Editorial of Malaysia Gazette by reader, Hafiz Hassan.

Like My Story – Justice in the Wilderness, the Spycatcher (Stoddard, 1987) is a memoir. If the former has jumped up places in Amazon’s Hot New Releases in the category of new releases on biographies of lawyers and judges, the latter was no less a bestseller in its own right.

In 1985, a manuscript purported to be a memoir of Peter Wright, a senior ex-officer of the British security service, M15 was set to be published as a book entitled Spycatcher. Peter Wright had access to highly classified and highly sensitive information. Upon his retirement from the security service in 1976 he went to live in Tasmania, Australia where he proposed to publish his memoir. It would describe his experiences in the security service, thus disclosing the secrets of M15 and its espionage activities. These were information obtained by him in his capacity as an officer of the security service.

The legal action to restrain the publication of the manuscript resulted in the UK Attorney General (AG) commencing proceedings for injunctions not only in England but also in Australia, New Zealand and Hong Kong. In England, the case went up to the apex court, the House of Lords both at the interlocutory injunction stage as well as at trial. In Australia, it went up as well to the apex court, High Court of Australia.

The litigation proceedings were complex and covered many areas of the law ranging from the law of confidence to the law of copyright and official secrets legislation, involving also issues of freedom of speech and freedom of the press.

Now, upon learning of the intended publication of the manuscript in Australia, the AG applied for an injunction in New South Wales in 1985 against Peter Wright and his Australian publishers, Heinemann Publishers Australia Pty. Ltd., to restrain the publication of the book in Australia by way of injunction. A restraining order was granted: pending the trial in Australia, “neither Mr. Wright nor his publishers, nor any servant or agent of theirs, should make any such disclosure.”

The trial of the action was only to commence in November 1986.

However, on June 22 and 23, 1986, the Observer and the Guardian newspapers in England respectively, published articles on the forthcoming court hearing in Australia which included an outline of some of the more newsworthy allegations made by Peter Wright in his yet to be published manuscript. The AG commenced an action against these two newspapers basing the action on the law of confidence.

On June 27, 1986, Justice Macpherson granted the AG ex parte interlocutory injunctions against the Observer and the Guardian newspapers for the publication of their articles. When the parties appeared inter parte before another judge – Justice Millet – the learned judge granted the AG interlocutory injunctions in modified form, and subject to three provisos. The injunctions restrained the Observer and the Guardian newspapers from publishing or disclosing any information obtained by Peter Wright in his capacity as a member of M15. An appeal to the Court of Appeal was dismissed on July 25, 1986.

At this point in time, although some of its contents had already been disclosed by the two newspapers in their publications, the contents of the book as a whole was not in the public domain. The Spycatcher was only published in the United States (US) almost a year later on July 13, 1987 and was from then on sale in bookshops throughout the US.

As stated above, the litigation proceedings were complex and I wish not to go into them. Suffice here to note that injunctive remedies were granted by the courts in Australia and England which restrained publication of the book. In England in particular, ex parte injunctions were first granted which were modified inter parte and the appeal against the inter parte injunctions was dismissed.

The remedies were founded on the principles of the law of confidence which were expounded in the leading case of Coco v Clark (1969) where Justice Megarry said:

“In my judgment three elements are normally required if, apart from contract a case of breach of confidence is to succeed. First, the information itself… must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

The principles require a detailed discussion but suffice to state here that in order to succeed in an action for breach of confidence the elements laid down in Coco v Clark must be satisfied subject to the following provisos:

(a) the information must not be in the public domain;

(b) the information must not be mere ‘trivial tittle-tattle’;

(c) the disclosure must not be justified in the public interest.

That said, the point is this: injunctive remedies lie against publication of My Story pending trial. The current furore and controversy, therefore, could have been averted.

The court would have been the best forum to strike the balance between freedom of expression and public interest. As the House of Lords in A-G v Guardian Newspapers (No. 2) (1988) duly noted:

“Freedom of expression, despite its primacy, can never be absolute…. At any time unrestrained expression may conflict with important public or private interests…. Some balancing is inescapable. The ultimate question is always: Where has – and should – the balance be struck?”

Let the court determine.

I would like to think that Tommy Thomas would not mind facing off his detractors in a court of law than court controversies in a court of public opinion.

-Hafiz Hassan-

Editorial note: The views expressed are those of the author/contributor and do not necessarily represent the views of Malaysia Gazette

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OPINION: Memoirs of a former AG: Could the publication be prevented?