Finding Another Way: Defamation Injunctions are Hard To Come By
A recent High Court judgement shows that the Courts will be reluctant to grant an injunction to prevent media from publishing defamatory material. An injunction will only be granted in clear cases where the defendant has a weak defence (or none at all).
It should also be remembered that an unsuccessful injunction application will expose the Plaintiff to the risk of significant costs, and it may also have the potential to attract more adverse publicity than the original story. These factors, coupled with the evident difficulty in obtaining an injunction, may lead claimants to pause for thought before seeking Court orders to prevent publication.
Philpott v Irish Examiner Limited is the first written judgment to consider the test to be applied where a plaintiff seeks an injunction under the Defamation Act 2009. The Act provides that an injunction should only be granted where the court is satisfied that (1) the statement is defamatory and (2) the defendant has no defence that is reasonably likely to succeed.
The High Court commented that:
- In determining whether a defence is reasonably likely to succeed, any benefit of the doubt should be exercised in favour of the defendant;
- The importance of freedom of speech means that, on occasion, the court will deny injunctive relief even though the statement may be defamatory (for example, because the defendant may be able to avail of one of the statutory defences which can excuse even a defamatory publication, such as ‘fair and reasonable publication on a matter of public interest’); and
- The threshold for seeking an injunction is higher under the 2009 Act.This high threshold, the cost risk and the risk of judicial discretion being exercised in favour of a defendant, may mean that defamation injunctions will only be sought by the very rich or in the most extreme cases.
The High Court declined to grant Mr Philpott an injunction prohibiting the publication of articles in the Irish Examiner concerning a dispute with his former employer. The Court found that the articles were not defamatory and that, in any case, the defence was likely to succeed.
The high bar set for defamation injunctions demonstrates that those considering such injunctions should carefully consider their options, including whether a basis exists for an injunction based on a breach of confidentiality or privacy (where fewer defences are available). If there is a strong prospect of a substantial damages claim, then the potential exposure may cause the media to think twice about publication without the Plaintiff having to seek an order. In any event, a sophisticated strategy is required, as to the extent to which it is appropriate, to engage with the party threatening to publish the offending material. While legal proceedings (or the threat of such proceedings) will be appropriate in certain situations, Court orders to stop such publications will be very hard to come by, except in the most extreme cases.
For some practical tips on injunctions, please read our July, 2015 Bulletin.
Date published: 01 March 2016