Page 232 - Law and the Media

12 Prior Restraint

Hugh Tomlinson QC

12.1 Introduction

The power of the courts to prevent publication in the media is the most stringent form of
restricting freedom of expression. The basic principle is that jurisdiction to grant injunctions
to restrain publication should only be used in ‘the clearest cases’ – cases in which the
claimant can demonstrate that publication is wrongful and likely to cause irreparable harm.
Prior restraint is extremely rare in defamation cases, but is much more readily granted where
a breach of confidence or contempt of court is threatened. Since the Human Rights Act 1998
came into force on 2 October 2000, the courts have, increasingly, been prepared to grant
injunctions to restrain the publication of information about a person’s ‘private life’.

12.2 General principles

12.2.1 Applications for interim injunctions

An application for an interim injunction to restrain publication can only be made when a
claimant becomes aware of an impending publication to which he takes objection.
Applications are often made ‘without notice’ to the defendant. It should be borne in mind that
in such a case:

The claimant has a duty of ‘full and frank disclosure’ – all points that undermine
his case and support that of the defendant must be disclosed to the court. If this
duty is breached, the defendant is entitled to have the injunction set aside for this
reason alone.
The claimant must give an ‘undertaking in damages’ to the court. If what is sought
is an injunction that prevents the publication of a newspaper or magazine, the loss
to the defendant is likely to be very substantial and the claimant must satisfy the
court that he can cover this loss if it turns out that the injunction was wrongly
granted.

Any media organization that receives an injunction should check that both these
requirements have been complied with. If not, either could form the grounds for an
immediate application to discharge the injunction.