Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’): HL 13 Oct 1988

Loss of Confidentiality Protection – public domain

A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations made. The AG sought to restrain those publications.
Held: A duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. There would be no point in imposing a duty of confidence in respect of the secrets of the marital bed if newspapers were free to publish those secrets when betrayed to them by the unfaithful partner. When trade secrets are betrayed by a confidant it is usually the third party who exploits the information and it is the activity of the third party that must be stopped.
The court could look to the Convention to help decide how common law should develop. There was in principle no difference between article 10 of the European Convention of Human Rights and the English law of confidence. ‘the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it.’ and ‘ I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the Convention]. But for present purposes the important words are ‘when I am free to do so’. The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.’
Lord Griffiths considered the correct approach to the defence of public interest in a copyright action: ‘If Peter Wright owns the copyright in Spycatcher, which I doubt, it seems to me extremely unlikely that any court in this country would uphold his claim to copyright if any newspaper or any third party chose to publish Spycatcher and keep such profits as they might make to themselves. I would expect a judge to say that the disgraceful circumstances in which he wrote and published Spycatcher disentitled him to seek the assistance of the court to obtain any redress: see Glyn v Weston Feature Film Co. [1916] 1 Ch. 261.’ A third limiting principle of the protection afforded by the law of confidence was ‘although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.’
Lord Jauncey said: ‘The courts of the United Kingdom will not enforce copyright claims in relation to every original literary work . . The publication of Spycatcher was against the public interest and was in breach of the duty of confidence which Peter Wright owed to the Crown. His action reeked of turpitude. It is in these circumstances inconceivable that a United Kingdom court would afford to him or his publishers any protection in relation to any copyright which either of them may possess in the book.’
Lord Goff of Chievely said that an obligation of confidence could arise even where the information in question had not been confided by a confider to a confidant: ‘I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties – often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. It is in such cases as these that the expressions ‘confider’ and ‘confidant’ are perhaps most aptly employed. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.’
Lord Goff set out three limiting principles for the rights of confidentiality: ‘The first limiting principle (which is rather an expression of the scope of the duty) is highly relevant to this appeal. It is that the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it.
The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia. There is no need for me to develop this point.
The third limiting principle is of far greater importance. It is that, although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure’.


Lord Goff of Chieveley, Lord Hutton, Lord Hobhouse of Woodborough, Lord Griffiths, Lord Jauncey


[1990] 1 AC 109, [1988] UKHL 6, [1987] 1 WLR 776, [1988] 3 All ER 545




European Convention on Human Rights


England and Wales


ApprovedO Mustad and Son v Dosen and Another; O Mustad and Son vAllcock HL 1924
(Heard in 1924, but noted only in 1963) Dosen worked for a company T under a contract of employment that included an undertaking to keep confidential information acquired at work. His employer went into liquidation. The benefit of that company’s . .
ApprovedLion Laboratories Ltd v Evans CA 1985
Lion Laboratories manufactured and marketed the Lion Intoximeter which was used by the police for measuring blood alcohol levels of motorists. Two ex-employees approached the Press with four documents taken from Lion. The documents indicated that . .
CitedGlyn v Weston Feature Film Co 1916
Relief for copyright infringement was refused where the nature of the work tended to gross immorality. Younger J said that it was: ‘clear law that copyright cannot exist in a work of a tendency so grossly immoral as this, a work which apart from its . .
CitedBile Bean Manufacturing Co v Davidson SCS 1906
The second division refused relief against copyright infringement to a company which had perpetrated a deliberate fraud on the public by a series of false factual statements about its products. Lord Justice-Clerk Lord Macdonald said: ‘No man is . .
CitedSlingsby v Bradford Patent Truck and Trolley Co 1905
Equitable relief was refused for an infringement of copyright where the work made false statements with intention to deceive the public. . .
See AlsoAttorney General v Guardian Newspapers Ltd (No.1) HL 13-Aug-1987
A retired secret service officer intended to publish his memoirs through the defendant. The house heard an appeal against a temporary injunction restraining publication.
Held: Lord Bridge delivered his dissenting speech in the case of . .
At First InstanceAttorney-General v Guardian Newspapers Ltd QBD 1988
A Mr Peter Wright had written a book about his service in MI5. The Crown sought to restrain publication of the book by newspapers and also, as against The Sunday Times, an account of profits.
Held: As to this latter Scott J, said: ‘I had . .
Appeal FromAttorney-General v Guardian Newspapers Ltd CA 2-Jan-1988
A former employee of the Secret Service had written a book (‘Spycatcher’). The AG sought several remedies including damages against a newspaper for serialising it. Dillon LJ said: ‘It has seemed to me throughout the hearing of this appeal that there . .

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Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Information

Leading Case

Updated: 07 August 2022; Ref: scu.180685