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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.