Page 234 - Law and the Media

Prior Restraint
Statement is defamatory
The court must be satisfied that a jury would be bound to conclude that the words that the
defendant threatens to publish are defamatory (Kaye v Robertson (1991)). If the words are
capable of non-defamatory meanings, it is unlikely that an injunction will be granted.

Defence of justification will fail
An injunction will not be granted if the defendant asserts that the words complained of are
true (Bonnard v Perryman (1891)). Provided that the defendant advances some evidence to
support a proposed plea of justification, an injunction will be granted only in the extremely
rare case in which the claimant can satisfy the court than the plea of justification is bound
to fail. The rule in Bonnard v Perryman applies whatever the defendant’s motive and the
manner in which publication is threatened. For example, the court refused an injunction even
where a defendant sought to extract money from the plaintiffs on threat of publication of
what he said were damaging but true allegations about them (Holley v Smyth (1998)).

No defences
The claimant must rebut any other defences that might properly be raised – for example, fair
comment or qualified privilege. If the publication is on a matter of public interest and appears
to be the product of ‘responsible journalism’, the claimant must show the defendant would
be bound to fail in establishing a defence of qualified privilege as set out in the case of
Reynolds v Times Newspapers Ltd (1999) (see Chapter 1).

12.3.2 Conclusion

Each one of these is a stringent test that is difficult to satisfy. Taken together, their practical
effect is that interim injunctions are not often granted in any defamation case, and injunctions
restraining the media from publishing defamatory material are extremely rare.

12.4 Breach of confidence

12.4.1 Claims relating to non-confidential material

The rule restricting the availability of interim injunctions in defamation cases also extends
to similar torts, such as trade libel and injurious falsehood (Lord Brabourne v Hough (1981)).
Therefore a claimant attempting to restrain the publication of material he believes to be
damaging will often seek to do so on other grounds, such as conspiracy to injure, breach of
copyright, trademark infringement and, most importantly, breach of confidence.

However, attempts to avoid the rules that apply in defamation cases are unlikely to be
successful. The courts have made it clear that, whatever the cause of action, freedom of
speech is an important factor to be taken into account in the exercise of the discretion of the
court (Femis-Bank v Lazar (1991)). The court will not allow claims for trademark
197