## Facts

- A British company marketed thalidomide-containing drugs to pregnant women between 1958 and 1961, resulting in many children being born with severe deformities.
- Hundreds of civil actions were brought against the manufacturer, and settlement negotiations were ongoing.
- *The Sunday Times* prepared an article criticizing the adequacy of the proposed settlement, alleging inadequate testing and disregard of warnings, and criticizing aspects of English tort law and the handling of compensation.
- The Attorney General sought an injunction in England to stop publication on the ground that it would constitute contempt of court by prejudicing pending civil proceedings.
- A domestic court granted an injunction; an appellate court reversed; the highest domestic court, by majority, reinstated the injunction, treating the intended publication as contempt.
- The injunction functioned as prior restraint barring publication in its intended form while litigation remained pending.
- The publisher, editor, and journalists applied to the European Court of Human Rights, alleging the injunction violated the right to freedom of expression under Article 10 of the European Convention on Human Rights.

## Issues

1. Whether the contempt injunction constituted an interference with freedom of expression protected by Article 10(1).
2. If so, whether the interference was “prescribed by law,” where the restriction derived from common-law contempt rules.
3. Whether the interference pursued legitimate aims under Article 10(2), including maintaining the authority of the judiciary and protecting the rights of others.
4. Whether the interference was “necessary in a democratic society,” including whether it met a pressing social need and was proportionate to the aims pursued.

## Decision

- The court held that the injunction interfered with the applicants’ Article 10 rights.
- The interference was “prescribed by law” because unwritten, judge-made contempt rules can qualify as “law” if sufficiently accessible and reasonably foreseeable in their application.
- The interference pursued legitimate aims, including maintaining the authority of the judiciary and protecting parties’ rights in pending civil proceedings.
- The interference was not “necessary in a democratic society” because the reasons given by domestic authorities were not sufficient and the prior restraint was disproportionate in light of the public interest and the limited risk of prejudice.
- The court found a violation of Article 10 and did not reach separate claims under Articles 14 or 18.

## Legal Principles

- An injunction preventing publication is an “interference” with freedom of expression, particularly where it operates as prior restraint.
- “Prescribed by law” under Article 10(2) may be satisfied by common-law rules if they are adequately accessible and formulated with enough precision to make consequences reasonably foreseeable.
- “Necessary in a democratic society” requires a pressing social need; the state must provide reasons that are relevant and sufficient, and the measure must be proportionate.
- The breadth of the margin of appreciation varies by aim; restrictions justified by protecting the authority of the judiciary are subject to closer international scrutiny than categories such as protection of morals.
- In assessing contempt-based restraints during pending litigation, courts must balance fair-trial interests against the press’s role in informing the public on matters of public concern, and broad restraints require strong justification tied to concrete risks.

## Conclusion

The court ruled that a contempt injunction barring publication about pending thalidomide litigation, though grounded in law and aimed at protecting judicial authority and litigants, violated Article 10 because it imposed a disproportionate prior restraint that was not shown to meet a pressing social need.


Sunday Times v. United Kingdom (No. 1), App. No. 6538/74 (Eur. Ct. H.R. Apr. 26, 1979)