A Scandal Too Long Concealed

Human rights court rebukes England for gagging the press

The idea that individuals have rights that government should not infringe was an article of faith with "freeborn Englishmen" as far back as 1215, when a group of barons sat King John down to sign the Magna Carta. So there was considerable irony in the fact that an international court, born out of the Holocaust to prevent the rise of another Nazi Germany, solemnly declared last week that Great Britain had failed a basic test of human rights. Free expression, ruled the 20-judge European Court of Human Rights, had been denied by a longstanding English law that stifled the press and allowed a national scandal to go virtually unreported for a decade.

The scandal started in 1958 when Distillers Co., a huge British conglomerate known best for selling Scotch and gin, heavily advertised and sold a dangerous tranquilizer, Thalidomide, without adequately testing its effect on pregnant women. Before Distillers finally pulled the drug off the market, in 1961, some 450 tragically deformed babies were born in England, with flippers instead of arms and legs, or no limbs at all.

The government never investigated the calamity. Antiquated British laws made it difficult for victimized families to sue Distillers; the more than 350 who did were provided with lawyers who, in many cases, knew next to nothing about personal injury cases. Because of the law's delay and Distillers' refusal to offer more than niggardly settlements to the victims, the case dragged on into the '70s. All the while, the British press was banned from saying anything about it. The reason: under British "contempt of court" law, judges quickly impose fines and jail terms on editors and reporters who comment on any case under court review. The purpose of the law is to prevent "trial by newspaper," but no attempt is made to balance fair trial and free press; the law is applied any time press coverage could possibly be prejudicial, even if publication would serve the public interest. If the U.S. had the same law, Watergate might still be under wraps, since the Washington Post would have been silenced after the break-in at Democratic Party headquarters and limited to reporting the bare facts at trials and public hearings.

The British press has a tradition of quietly putting up with this and other restrictions on its freedom. But in 1972, the London Sunday Times ran out of patience. In a series of articles entitled "Our Thalidomide Children: A Cause for National Shame," the Sunday Times made it clear that Distillers had been miserly with the Thalidomide victims. The stories provoked public outrage and pressured Distillers to raise its original settlement offer sevenfold, from an average of about $25,000 per child to $175,000. The articles were clearly in contempt of court. But the Sunday Times managed to avoid fines and jail terms by striking a deal: it agreed to show its final--and most damning--article to the government before publishing it. That article, detailing how Distillers had been negligent in selling the dangerous drug in the first place, was firmly banned by a lower court. The paper appealed, but the Law Lords who act as Britain's highest court refused to bend the contempt law, leaving the Sunday Times nowhere else to turn to get the story published.

In England, that is. In 1974 the Sunday Times took its case to the 25-year-old European Commission of Human Rights in Strasbourg. When the commission decided the Sunday Times case was worth hearing a year later, the English government and the courts began backing down. By then, it would have been absurd not to. Almost all the Thalidomide litigation was settled, leaving little to be prejudiced by the press. The dam finally broke: in 1976, the Sunday Times was allowed to print for the first time a story that explicitly discussed Distillers' negligence. And in 1977, the commission decided that England had violated the "free expression" guarantee of a human rights convention adopted by Britain and 17 other countries in 1953. The commission also conveniently appended to its decision the Sunday Times article censored in 1972, making it a matter of public record and thus publishable, five years after it was written and 15 years after the last Thalidomide baby was born.

Final vindication for the Sunday Times came from the Court of Human Rights last week. The 11-to-9 decision stopped short of saying that Britain's law of contempt itself violates the broadly worded guarantee of free expression in the charter, which also recognizes the need to protect the "authority of the judiciary." But banning the final Thalidomide article simply was not "necessary," said the Strasbourg judges. In this case, they added, the public's right to know was more important.

The court left it up to Britain to bring its contempt law into line with the principles of a free press. There is no sanction if Britain does not, other than international embarrassment.

"Strasbourg has always felt that it must go cautiously for fear that national governments will pull the rug out from under it," says Cedric Thornberry, an international lawyer who has brought more than 100 cases to Strasbourg. Indeed, the human rights commission refuses to hear most cases and tries to settle the rest amicably. Only when that fails, or a really significant test like the Sunday Times case comes along, does the full court pass judgment on one of its member nations.

Still, Strasbourg's power of gentle persuasion has produced results, from broadening trade union freedom in Belgium and Sweden to expanding legal aid in Ireland and protecting prisoners' rights in Britain and Germany. Strasbourg has helped induce the British government to loosen its immigration laws, stop mistreating prisoners in Ulster and persuade authorities on the Isle of Man to stop "birching" the bare behinds of petty criminals.

Britain, in fact, is the commission's best client. In the past three years Strasbourg has received 398 complaints against the British government, more than against any other country. Unlike many other European countries, England does not recognize the European human rights convention as national law. Its own constitution is largely unwritten; there is no bill of rights set above the power of Parliament. That makes it more difficult to persuade a British court that the government has trespassed on individual rights. And it helps explain why so many Britons turn to Strasbourg for redress.

As government grows bigger in England, so does the feeling that England should formally adopt a bill of rights. The Sunday Times victory in the Thalidomide case will at least increase the pressure on Parliament to strengthen the right of free speech. But there are some characteristically British obstacles in the way of real reform. One is that Parliament is loath to give up its traditional supremacy over the courts, which would happen if judges were allowed to declare laws unconstitutional. Another is the sheer slowness of change in Britain. But after his success at Strasbourg, Sunday Times Editor Harold Evans promised to do his best to speed it along. If the Sunday Times, closed since Nov. 30 in a dispute with its printers, ever resumes publishing, Evans says he intends to challenge the contempt laws by reporting on important cases under trial.

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