Spycatcher and Reds under the Bed

It is hard to explain to my junior colleagues how seriously we considered the threat to Western Europe from Warsaw Pact invasion in the 1980s. When I was commissioned in the RAF in 1984, its manpower strength was over 93,000 – its strength is currently planned to fall by 2015 to 31,000. A significant proportion of the RAF was located in Germany (as was the British Army), which, together with all air defence stations in the UK, maintained a high degree of readiness. Those of us serving during that period were well used to “no-notice call outs” and alerts, which somehow always seemed to be between 4 – 6 am.

It was in this Cold War environment that spies and spying thrived. This was an age of active mole hunts and speculation over the identities and range of the Cambridge spy ring – “reds under the bed” being the ultimate McCarthyist fear. So any threat to national security that a former spy’s autobiography could present was a critical matter. This was exactly the problem of Peter Wright, a former member of MI5 and Assistant Director who had retired to Tasmania, whose autobiography “Spycatcher: The Candid Autobiography of a Senior Intelligence Officer” (Spycatcher) was to be published first in Australia. It was also published in the United States of America. Disclosure of state secrets by Wright was, not surprisingly, in breach of the Official Secrets Act 1911.

The Government first attempted to bring an action in Australia to restrain publication of Spycatcher, but this ultimately failed (the book was eventually published in Australia in October 1987). Articles on the Australian legal proceedings were published in The Observer and The Guardian. These newspapers were then subject to an interlocutory injunction in June 1986 to restrain them from publishing information obtained by Wright. The Sunday Times also began to serialise Spycatcher, before and in anticipation of its publication in the US in July 1987. The Attorney General obtained further injunctions. These injunctions were discharged on application by the newspapers – the Court of Appeal dismissed that Attorney General’s appeals, so the joined cases reached the House of Lords (Attorney General v Observer Ltd [1990] 1 AC 109). The issue for the House of Lords was the question of publication in breach of a duty of confidence – was the duty of confidence outweighed by a countervailing public interest?

This is where the Spycatcher case has immediate relevance. Whilst The Sunday Times was ordered to account for profits it made as a result of its first serialisation of an extract from the book, which was in breach of a duty of confidence. it was recognised by their Lordships that once the book was published in the US and its contents became widely known, so that the information in the book was no longer confidential, injunctions no longer became necessary.

It should also be remembered that although the Attorney General sought injunctions in England (& Wales), the Lord Advocate failed to seek an interdict in Scotland, so that distribution of Spycatcher and reporting on it was at all times legal in Scotland.  Even if an interdict had been obtained, there is a more recent Scots Law case that follows the Spycatcher precedent (Lord Advocate v Scotsman Publications [1989] UKHL 7).

Does this sound familiar, given CTB v News Group Newspapers Limited and Imogen Thomas?  Will the courts continue to support injunctions against The Sun and Imogen Thomas when as a result of publication abroad, on Twitter or elsewhere, the private information being protected from publication is in the public domain (assuming that there has been no breach of the original anonymised injunction by The Sun or Imogen Thomas)?

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CTB -v- Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814)

Royal Courts of Justice (ValP) / CC BY-SA 2.0

If you do not know what the outside of the Royal Courts of Justice on the Strand in London looks like, the picture above may help.  However, we expect that if you watch any UK television news, you will also see plenty of TV reporters do pieces to camera from outside the court.  This will particularly be the case around the date of this post because the case of CTB v. Twitter Inc. and Persons Unknown (Case No. HQ11X01814) is inevitably going to receive plenty of attention.  It has all the topical ingredients that media reporters could wish for: the case has been brought by a Premier League professional footballer (at present known merely as CTB); it references super-injunctions and involves the Llanelli glamour model, Imogen Thomas (plenty of scope for gratuitous library video footage).

However, whilst not denying these interesting elements, what we are interested in is the attempt to bring an action in the High Court in England (& Wales) against “Twitter, Inc. and Persons Unknown”.  Some of the background to the case is described in our previous post: Footballer CTB is suing Twitter.

It appears that as the claim form has yet to be served, its details have not yet been made public.

There are a number of questions that arise from the case.  How can CTB bring a claim against “Persons Unknown”.  Given that these are likely to be anonymous Twitterers, CTB cannot serve upon them any statement of claim or injunction.  In circumstances such as these, CTB could seek to obtain a Norwich Pharmacal Order in respect of each of the unknown persons.  A Norwich Pharmacal Order requires a third party to disclose the information that would enable unknown persons to be identified for the purposes of civil proveedings.  However, this is not appropriate in these circumstances as the person with the relevant identity information, Twitter, is outside of the jurisdiction.

Fortunately for CTB, there is a procedure to enable him to seek the Court’s permission to serve the claim form and orders out of the jurisdiction (Section IV of Part 6 of the Civil Procedure Rules).  The method for service is likely to be one of the methods permitted by the Hague Convention of 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, to which the UK and the United States of America are members.  It remains to be seen that even if these steps are taken, and Twitter is successfully serviced with the statement of claim or any Norwich Pharmacal Orders, whether Twitter would take any notice of them and submit to the jurisdiction of the High Court.

The next question concerns the nature of the statement of claim.  We speculate that it must be an application to commit to prison the persons, including Twitter, for aiding and abetting the breach of the original injunction against The Sun (NGN Limited) and Imogen Thomas (and thus being themselves in contempt of court).  Rather than prison, the disobedient parties can be subject to an unlimited fine and the court can order any act to be done at their expense. Until the claim form is in the public domain, we cannot be sure.  We are not aware at this point of any ISPs or social media platforms being the subject of this type of application, so we cannot say whether the High Court would be persuaded by the so-called “mere conduit” defence that Twitter could raise.  Strictly, this defence arises under the Electronic Commerce (EC Directive) Regulations 2002 (Regulation 17), enabling service providers of an information society service to evade liability for the content of information passing through their networks over which they have no control. Whilst the terms of the regulation give service providers a defence so that they “shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction”, we believe this has not been raised as a defence in contempt of court proceedings.