Attorney General v Guardian Newspapers (No 2) (Spycatcher)

Peter Wright served as an officer of the Security Service (MI5) for many years before retiring. Upon his retirement he emigrated to Australia, where he wrote and published a memoir entitled Spycatcher. The book contained detailed allegations concerning the internal workings of the British security and intelligence services, including claims of unlawful conduct, plots against political figures, and systemic malpractice within MI5. Wright had, upon joining the Security Service, accepted a duty of confidentiality that was understood to be lifelong in character and to encompass all information obtained in the course of his service.

The Attorney General, acting on behalf of the Crown, sought to prevent publication of the book and its contents within the United Kingdom. Injunctions were sought against The Guardian, The Observer and The Sunday Times, each of which had either published extracts from or summaries of the book's allegations. The basis of the claim against the newspapers was breach of confidence: by publishing material derived from Wright's memoirs, the newspapers were said to be assisting in, or themselves committing, a breach of the duty of confidence Wright owed to the Crown.

Proceedings were initiated at a time when the book had not yet been published in the United Kingdom, and interim injunctions were granted restraining the newspapers from publishing the relevant material pending full trial. These interim injunctions remained in force for a significant period, during which time the book was published in Australia and subsequently in the United States of America. It entered wide international circulation and became available in substantial quantities in many countries, including, inevitably, through copies brought into the United Kingdom by travellers and through other means of dissemination.

By the time the matter reached the House of Lords on the question of permanent injunctions, it was accepted on all sides that the contents of Spycatcher were in the public domain in a practical and comprehensive sense. The book had sold in very large numbers internationally, serialisations had appeared in foreign newspapers, and its substance was widely known and freely discussed in public discourse. The Attorney General nonetheless maintained the claim for permanent injunctions, arguing that the principle of confidentiality survived entry into the public domain and that the duty owed by Crown servants demanded enforcement regardless of the changed circumstances.

The case thus came before the House of Lords in 1988, producing a decision reported at Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109. The speeches of their Lordships contain the most authoritative modern treatment of the law of confidence in English law, and the decision resolves the tension between the duty of confidentiality owed by public servants and the principle that equity will not grant relief in respect of information that has ceased to be confidential in any meaningful sense.

Lord Keith, Lord Brightman, Lord Griffiths, Lord Goff and Lord Jauncey formed the majority, refusing the permanent injunctions. Lord Ackner and Lord Lowry dissented in part. The case proceeds on the footing that Wright's original disclosures were a serious and culpable breach of the duty he had voluntarily undertaken, but that the equitable remedy of injunction must be determined by reference to the circumstances as they exist at the time of the court's order, not merely by reference to the wrongfulness of the original conduct.

The primary issue was whether a permanent injunction could be granted to restrain publication in England and Wales of information that had, by the time of the hearing, entered the public domain through extensive overseas publication. This required the House of Lords to address the fundamental question of whether confidentiality can survive entry into the public domain, or whether the equitable cause of action for breach of confidence depends upon the information retaining a quality of confidence at the time the remedy is sought.

The secondary issue concerned the nature and scope of the duty of confidentiality owed by former members of the security and intelligence services. The court was required to determine whether such persons owe a duty of confidence that is absolute and lifelong, enforceable irrespective of the public interest in freedom of expression or the practical utility of restraint, or whether that duty, though properly described as lifelong, is qualified by principles of proportionality, public interest, and the availability of meaningful relief.

A further ancillary question arose as to the position of the newspapers themselves. The court had to consider whether third-party recipients of confidential information, who publish it knowing of the original breach of confidence, are themselves subject to restraint even where the information has become publicly known, and whether freedom of expression considerations, which the courts recognised as engaged even before the Human Rights Act 1998, bear upon the grant of relief against the press.

Lord Goff of Chieveley delivered what has come to be regarded as the most comprehensive and authoritative speech on the general law of confidence. Drawing upon the foundations laid in Prince Albert v Strange (1849) 1 Mac & G 25 and the classic three-part formulation identified in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, Lord Goff articulated the modern equitable action as protecting information of a confidential nature, communicated in circumstances importing an obligation of confidence, where disclosure would be to the detriment of the party communicating it and is not authorised by that party. These three elements — the quality of confidence, the circumstances of communication, and detriment — remain the canonical statement of the cause of action.

Lord Goff also addressed the important question of whether the duty of confidence can operate to restrain disclosure of information by those who have not themselves been a party to the original confidential relationship but who have received the information knowing it to have been disclosed in breach of confidence. He confirmed that such third parties may be restrained, but subject always to the overriding principle that the information must itself retain the necessary quality of confidence at the time relief is sought. A defendant cannot be restrained from publishing that which is already freely and publicly available.

The court affirmed and applied the principle, already well-established in Australian jurisprudence, that information loses its character as confidential once it enters the public domain. Reference was made to the reasoning of Mason J in Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39, where it was similarly recognised that the equitable action for breach of confidence is concerned with the protection of information that genuinely possesses the quality of secrecy, and that this quality cannot be artificially maintained once the information has been widely and permanently disseminated. Their Lordships found this reasoning persuasive and consistent with principle.

On the specific facts, their Lordships held without hesitation that the contents of Spycatcher had ceased to be confidential in any legally meaningful sense by the time the case came before the House of Lords. The worldwide publication of the book, its commercial availability in many countries, and the extent of its circulation made it impossible to contend that the information retained any residual secrecy. To grant an injunction in these circumstances would be a futility: it would not restore the confidentiality that had been destroyed, would not protect any identifiable interest of the Crown, and would simply prevent the newspapers from publishing what any member of the public could freely obtain from a bookshop abroad or from copies already in circulation in the United Kingdom.

The House of Lords was careful to distinguish the position on the merits from any criticism of Wright's original conduct. All of their Lordships who addressed the point agreed that Wright had committed a serious breach of duty in writing and publishing Spycatcher, and that his conduct deserved strong condemnation. The duty of confidentiality accepted by members of the security and intelligence services is properly regarded as lifelong, reflecting the peculiar sensitivity of the information to which such persons have access and the importance of maintaining public trust in the integrity of the services. This duty is not merely contractual but has an equitable character that survives the termination of employment.

However, the court distinguished between the existence of a duty and the availability of a particular remedy to enforce it. Equity acts in personam and grants relief according to the circumstances as they exist; it does not permit the grant of a remedy that would achieve no legitimate purpose. Once the damage has been done — once the information has irrevocably entered the public domain — an injunction against further publication within England and Wales achieves nothing in terms of protecting confidentiality and serves only as a punitive measure against the press. Equity does not sanction the use of injunctive relief as punishment.

The Attorney General advanced an argument that the court should nonetheless restrain the newspapers in order to uphold the principle that wrongdoers should not be permitted to profit from their breach, and to deter future breaches by others who might hope that worldwide publication would similarly destroy the confidentiality of the information they wished to disclose. Their Lordships rejected this argument as a basis for injunctive relief. The principle against unjust enrichment through breach of confidence may sound in other remedies, including an account of profits, but it does not justify granting an injunction that has no practical utility in preserving confidentiality.

Lord Goff, in observations that were obiter but have since proved influential, suggested that there may be circumstances in which an account of profits could be sought even after information has entered the public domain, where a defendant has profited from the commercial exploitation of a breach of confidence. This observation recognises that the entry of information into the public domain does not necessarily extinguish all remedies for its wrongful disclosure; it destroys the basis for injunctive relief, but does not automatically foreclose equitable remedies directed at stripping the wrongdoer of gains made before that point was reached.

The court also addressed the significance of the public interest in freedom of expression and the freedom of the press. Although the Human Rights Act 1998 had not yet been enacted, the House of Lords acknowledged that the courts had long recognised freedom of expression as a constitutional value of the first importance in English law. Injunctions restraining the press engage this value directly, and the grant of such injunctions requires clear justification in terms of a continuing confidential interest that they serve to protect. Where no such interest survives, the scales tip decisively in favour of publication.

Lord Griffiths, while concurring in the result, took the opportunity to observe that the Security Service lacked an adequate statutory basis for its operations and that this was a matter deserving of legislative attention. This observation, though strictly obiter, was not without practical consequence: the Security Service Act 1989 was enacted shortly after the House of Lords' decision, placing the Service on a statutory footing for the first time and providing a legal framework governing the conduct and obligations of its members.

Lord Ackner and Lord Lowry, in their partial dissents, expressed greater sympathy with the Crown's position, suggesting that the court should not permit the fait accompli of unlawful publication abroad to defeat entirely the enforcement of a duty of confidence the seriousness of which was not in doubt. Their Lordships were concerned that refusal of relief might be seen as rewarding those who engineer widespread publication precisely in order to render domestic injunctions unavailing. However, the majority view prevailed: principle required that equity follow the reality of the situation, and the reality was that no confidentiality remained to be protected.

The majority were also influenced by the consideration that the Crown, as confider, stands in a different position from a private individual when seeking to protect confidential information. Mason J's analysis in Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 was cited with approval for the proposition that a government seeking to restrain disclosure of official information on grounds of confidentiality must demonstrate not merely a private interest in secrecy but a public interest in non-disclosure that outweighs the public interest in the free flow of information. Once the information is in the public domain, even this public interest basis for restraint collapses.

The House of Lords refused to grant permanent injunctions against The Guardian, The Observer and The Sunday Times. The contents of Spycatcher having entered the public domain through extensive publication in Australia, the United States and elsewhere, those contents no longer possessed the quality of confidentiality necessary to ground equitable relief by way of injunction. An injunction restraining domestic publication of information already in worldwide circulation would serve no legitimate interest in protecting confidentiality and was accordingly refused.

The court confirmed, as a matter of principle, that former members of the security and intelligence services owe a lifelong duty of confidentiality in respect of information acquired in the course of their service, and that Peter Wright's original disclosures constituted a serious and culpable breach of that duty. However, the destruction of confidentiality through worldwide publication meant that no injunction was available to protect the Crown's position at the date of the House of Lords' decision, whatever remedies might theoretically have been available at an earlier point.

The House of Lords further confirmed that third parties, including newspaper publishers, who receive and publish information knowing it to have been disclosed in breach of confidence are, in principle, subject to the equitable duty not to further the breach. However, this principle applies only where the information retains its confidential character; once it has entered the public domain, neither the original confidant nor third parties who publish can be restrained on the basis of breach of confidence.

Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 remains the leading authority on the law of breach of confidence in England and Wales. Lord Goff's reformulation of the three elements of the cause of action — quality of confidence