Prior restraint and temporary injunctions in defamation cases

Irish Daily Star on Sunday MastheadSome orders have been made on foot of the Defamation Act, 2009 (also here) – see, for example, Lowry v Smyth (background here and here; coverage of the order here), Mellon v Associated Newspapers (coverage here), and Meegan v Associated Newspapers (coverage here) – but Watters v Independent Star [2010] IECC 1 (03 November 2010) remains the only reported judgment on provisions of the Act. In that case, the newspaper had published an article headlined Larry’s Secret Shower Buddy, purporting to expose a a “seedy”, “weird”, “bizarre” and “secretive” homosexual relationship in prison between the plaintiff Barry Watters and Larry Murphy, a notorious criminal who had been convicted of rape and attempted murder. Matthews J held that the plaintiff had a residual reputation which was damaged by the newspaper’s allegations. He therefore granted the plaintiff a declaratory order pursuant to section 28 of the 2009 Act (also here) that the article was defamatory, and he made a further order pursuant to section 33 of the 2009 Act (also here) prohibiting the newspaper from re-publishing the defamation. Nevertheless, the newspaper repeated the defamation: in an article alongside a photograph of Watters the newspaper had stated:

We may have to apologise to this revolting pervert but will we mean it? Hell no.

As a consquence, the newspaper was fined 40,000 euros for contempt of court (can anyone tell me whether this fine was paid before the Irish Daily Star on Sunday is to ceased publication?). Moreover, the judge ordered that a fair summary of the earlier judgment in which he found that the applicant had been defamed be published by the newspaper with equal prominence to the layout of the original defamatory article. The facts are sensationalist, but they raise an important issue of legal principle relating to section 33 of the 2009 Act, which allows the court to make interim, interlocutory or permanent orders prohibiting the publication or further publication of the defamatory statement in respect of which the application was made.

The issue of injunctions in defamation cases is a fraught and controversial one. This is particularly so in the context of interim and interlocutory injunctions. However, as recent US cases have demonstrated, difficult issues can also arise in the context of permanent injunctions to restrain the republication of defamatory comments of the kind sought, awarded and breached in Watters. In this post, I want to look at interim and interlocutory injunctions; and I will return to the question of permanent injunctions in a future post.

In the US, there is a strong presumption against the constitutional validity of a prior restraint, so that speech may not be restricted by an interim or interlocutory order prior to a final decision on the merits that it falls within an unprotected category of speech, such as libel. In Ireland, the common law rule in Bonnard v Perryman [1891] 2 Ch 269 was to the same effect; it had come to be undergirded by considerations emanating from the Constitution and the European Convention on Human Rights; and these considerations are likewise appropriate in the interpretation of section 33. In Bonnard v Perryman, Lord Chief Justice Coleridge in the Court of Appeal held that the

… importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.

This was approved by Sullivan CJ in the Irish Supreme Court in Sinclair v Gogarty [1937] IR 377 (see also Gallagher v Tuohy (1924) 58 ILTR 134 (Murnaghan J); Connolly v Radio Telifís Eireann [1991] 2 IR 446 (Carroll J); Reynolds v Malocco [1999] 2 IR 203, [1999] 1 ILRM 289, [1998] IEHC 175 (11 December 1998) (Kelly J)); and it represents the law in Australia (Australian Broadcasting Corporation v O’Neill [2006] HCA 46 (28 September 2006)), Canada (Champagne v Collège d’enseignement général et professionnel de Jonquière 1997 CanLII 10001 (QC CA); Pichler v Meadows 2010 ONSC 1863 (CanLII)), New Zealand (Rogers v TVNZ [2007] NZSC 91 (16 November 2007) ) and South Africa (Hix Networking Technologies CC v System Publishers (Pty) Ltd (222/95) [1996] ZASCA 107, 1997 (1) SA 391 (SCA), [1996] 4 All SA 675 (A) (25 September 1996)) as well.

In Garrahy v Bord na gCon [2002] IEHC 147 (14 February 2002), O’Higgins J held that the sentiments in Bonnard v Perryman “have been heeded by the courts and nowadays are fortified by the provisions of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedom” – the position is similar in England (Greene v Associated Newspapers [2005] QB 972, [2004] EWCA Civ 1462 (05 November 2004)) and Northern Ireland (Allister v Paisley [2010] NIQB 48 (14 April 2010) – compare Quinlavan v O’Dea [2009] IEHC 187 (20 April 2009)). In Foley v Sunday Newspapers [2005] 1 IR 88, [2005] IEHC 14 (28 January 2005), the plaintiff sought an injunction to prohibit republication of allegations against him which he claimed put his life in danger; Kelly J held:

… I am quite satisfied that before an injunction of this type should be granted the plaintiff would have to demonstrate by proper evidence a convincing case to bring about a curtailment of the freedom of expression of the press. This is particularly so having regard to the strongly expressed guarantees in the Constitution in favour of freedom of expression. The Irish (and indeed the English courts in the absence of a written constitution) have always shown a marked reluctance to exercise their injunction jurisdiction in a manner which would entrench on the freedom of expression enjoyed by the press and the media generally. A good example of this is to be found in the judgment of O’Hanlon J in MM v Drury [1994] 2 IR 8.

Gama Endustri Tesisleri Imalat Montaj AS v Minister for Enterprise, Trade and Employment [2005] IEHC 119 (22 April 2005) (Kelly J), Cogley v Radio Telifís Eireann [2005] 4 IR 79, [2005] IEHC 180 (8 June 2005) (Clarke J) and Murray v Newsgroup Newspapers [2010] IEHC 248 (Irvine J) are all to similar effect.

However, this principle is not unlimited (see Cullen v Stanley [1926] IR 73 (SC); though quaere whether the case would be decided on its facts in the same way in the light of Quinlavan v O’Dea and Allister v Paisley above). In Reynolds v Malocco (above), Kelly J held that the jurisdiction to award an interim injunction in libel cases was of a delicate nature, and that the courts must be circumspect to ensure that it does not unnecessarily interfere with the right of freedom of expression. However, he was satisfied that his discretion had to be exercised in favour of granting an injunction to restrain publication of a magazine article which referred to the plaintiff as a “gay bachelor” who was “feeling far from gay these days” (contrast this US case), since to refuse it would be to consign the plaintiff to a trial where damages would be an inadequate remedy because of the virtual impossibility of ever recovering any sum awarded. Even so, as Hedigan J held in Evans v Carlyle [2008] 2 ILRM 359, [2008] IEHC 143 (08 May 2008):

The clear implication is that there may be cases where the court should act. It should do so, however, warily and cautiously. It should bear in mind the importance and centrality of freedom of expression in the democratic process. The right to freedom of expression is protected both by Article 10 of the European Convention on Human Rights and by Article 40.6.1. of the Irish Constitution. The court, therefore, should be very slow to restrict, either prior to or after publication, the continuing exercise of this right.

Section 33 of the 2009 Act allows a court to make interim or interlocutory orders prohibiting the publication or further publication of a defamatory statement, provided that the court determines that the defendant has no reasonable defence to the action. In what seems to be the first case to consider the this section in an application for an interlocutory injunction, charity boss Michael Meegan failed in his attempt to restrain publication by the Irish Mail on Sunday of allegations that he had made inappropriate sexual advances to males in Kenya: Kearns P held that the newspaper had shown a reasonable defence to any libel action, and that there was no suggestion the defendant was not a “mark” for damages should any libel action succeed (Inforrm’s blog | Irish Times | Mail). Much as the common law rule in Bonnard v Perryman had been, this section will have to be read subject to freedom of expression provisions of the Constitution and the Convention. For example, in Mahon v Post Publications [2007] 3 IR 338, [2007] IESC 15 (29 March 2007), Fennelly J for the majority held

41. Freedom of expression is, of course, guaranteed both by the Constitution and by the Convention, but, even without those guarantees and simply on the basis of the common law, it is elementary that any party asking a court to impose prior restraint of publication must justify it. …

65. … The defendant, in reliance on the jurisprudence of the European Court of Human Rights, submits that any such restriction calls for the most careful scrutiny. In Observer and Guardian v United Kingdom 13585/88 Series A no 216, (1992) 14 EHRR 153, [1991] ECHR 49 (26 November 1991) the Court held:

… Article 10 of the Convention does not in terms prohibit the imposition of prior restraints on publication, as such … On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny by the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.

66. That passage referred, of course, to the obligation of the European Court itself. However, it is equally plain, for reasons I have given above, that this Court is under a corresponding obligation. Lord Hope spoke of a “close and penetrating examination of the factual justification for the restriction” [see R v Shayler [2003] 1 AC 247, [2002] UKHL 11 (21 March 2002)]. It must scrutinise the present application for an injunction seeking prior restraint on publication with particular care. …

In Murray v Newsgroup Newspapers (above), the plaintiff failed to demonstrate by the necessary evidence that there was a real risk to his life or that he was likely to succeed at trial to prevent the publication of information concerning him by the defendant newspapers (compare Callaghan v Independent News & Media [2008] NIQB 15 (8 February 2008); see IT Law in Ireland | Inforrm’s Blog). In Murray, Irvine J considered that Fennelly J’s judgment reinforced Kelly J’s decision in Foley v Sunday Newspapers (quoted above); she concluded that she should therefore particular regard to Fennelly J’s judgment in circumstances where the relief sought on this interlocutory application is a prior restraint order directed to curtail in a significant manner the defendant’s rights to freedom of expression pending the hearing of the action (para 58); and she held

68. In cases where freedom of expression is sought to be restricted by an interlocutory order I am satisfied that the plaintiff is required, as Kelly J. said in Foley v Sunday Newspapers “to demonstrate, by proper evidence, a convincing case to bring about a curtailment of the freedom of expression of the press”. In my view this is the same as saying that the plaintiff must demonstrate at an interlocutory application that he is likely to establish at the trial of the action that the publication complained of should not be allowed. I agree with what Lord Nicholls said in Cream Holdings v Banerjee [2005] 1 AC 253, [2004] UKHL 44 (14 October 2004) that this requirement should operate in a flexible manner. However, in most cases, at a minimum the plaintiff should be required to adduce “proper evidence” to support his claim that the publication complained of should be prohibited at the trial of the action. In order to demonstrate a “convincing case”, or that such prohibition is “likely” to be ordered, the applicant must show that the interference with freedom of expression sought is justified by one of the recognised exceptions to that right and that the proposed restriction will be proportionate to the aim to be achieved. Furthermore, as Fennelly J said in Mahon v Post Publications the court must scrutinise an application for an injunction seeking prior restraint of a publication “with particular care”.

Since these considerations are derived from the Constitution and the Convention, they must guide the interpretation of section 33 of the 2009 Act. In particular, the power conferred by that section to award interim or interlocutory injunctions in defamation cases amounts to a prior restraint that must be scrutinised with particular care. This consideration does not appear on the face of section 33, but three factors suggest that it must apply here.

First, section 3(2) of the Act provides:

This Act shall not affect the operation of the general law in relation to defamation except to the extent that it provides otherwise (either expressly or by necessary implication).

To the extent that the previous common law on temporary injunctions in defamation cases is not displaced by section 33, then its principles continue to apply; and those principles leaned heavily against the prior restraint inherent in temporary injunctions to prohibit publication.

Second, those common law principles were reinforced by considerations deriving from the Constitution and the Convention, and such considerations also apply to the construction of section 33. In particular, the presumption of constitutionality and principle of double construction require that the section be read to require the strictest scrutiny of applications for termporary injunctions if it is to conform to the Constitution. Similarly, section 2 of the European Convention on Human Rights Act, 2003 (also here) requires that it be read in this way if it is to be consistent with the Convention.

Third, section 33 provides that the Court “may” make the order prohibiting publication; to the extent this confers a discretion upon the judge, then this discretion can be influenced by the previous common law and exerised in a way that conforms to the Constitution and the Convention.

Before the commencement of the 2009 Act, the courts were extremely slow to accede to applications for temporary injunctions restraining the publication of allegedly defamatory statements. For all of these reasons, they should be equally as slow to do so in applications pursuant to section 33 of the 2009 Act.

So much for temprorary injunctions. In a future post, I will consider applications for permanent injunctions pursuant to section 33. For now, it is sufficient that Coleridge LCJ’s Bonnard v Perryman maxim continues to apply:

The importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.