CONFIDENTIAL INFORMATION Undertaking not to publish information - newspaper seeking to vary to permit publication of matters in public domain - no requirement to be included to seek prior confirmation that information sufficiently in public domainAttorney-General v Times Newspapers Ltd and Others: CA (Lord Phillips of Worth Matravers MR, Tuckey and Longmore LJJ): 25 January 2001The defendant newspaper had undertaken not to publish information about the British secret intelligence service disclosed to it by T, a former employee of the service.

The newspaper applied to vary a proviso to the undertaking to permit it to publish extracts from a book about the service, written by T and published in Russia, once the book had entered the public domain.

Eady J varied the proviso so as to permit publication of information which (i) had previously been published in The Sunday Times or in any other national newspaper; (ii) had previously been published in any publication generally accessible to the public at large; and (iii) had previously been published or made generally accessible to the public at large on, by or through the Internet or other electronic medium.

The Attorney-General appealed.

On appeal the parties agreed that publication should be permitted 'to such an extent that the information is in the public domain' but the Attorney-General submitted that the newspaper should be required to demonstrate to the Attorney-General or to the court, prior to publication, that the information intended for publication was already sufficiently in the public domain.Jonathan Crow and Nicholas Caddick (instructed by the Treasury Solicitor) for the Attorney-General.

Michael Tugendhat QC and Iain Christie (instructed by Theodore Goddard) for the newspaper.Held, dismissing the appeal, that while it was desirable that there should normally be consultation between a newspaper and representatives of the service before the newspaper published information that might include matters capable of damaging the service or endangering those who served it, it was not right to impose on the newspaper the requirement that it should seek confirmation from the Attorney-General or the court that facts that it intended to publish had been sufficiently brought into the public domain by prior publication so as to remove from them the cloak of confidentiality.