When the press can be prevented from publishing
11 November 2004
Review of the law governing when the press can be prevented from publishing completed with judgment in Greene v. Associated Newspapers Limited
Less than a month since the House of Lords handed down its decision in Cream Holdings Limited and others v. Banerjee and others [2004] UKHL 44 concerning the threshold test applicable to pre-publication injunctions (see our separate Update article), the Court of Appeal has ruled on prior restraint in defamation. It represents another significant ruling in favour of the media, upholding its right not to be restrained from publishing a libellous allegation which it intends to defend on the basis that it is true or that it attracts a defence of privilege or fair comment.
In Greene v. Associated Newspapers Limited [2004] EWCA Civ 1462, a businesswoman, Martha Greene had sought to overturn the long-standing rule that a Court will not award an injunction to a claimant in a libel action unless it is plain that a plea of justification or any other defence is bound to fail. This rule, known as the rule in Bonnard v. Perryman after the 1891 case in which it was laid down, was alleged to be incompatible with the Human Rights Act 1998 in that a claimant's right to a reputation was not weighed in the balance against the defendant's right to freedom of expression.
But the Court of Appeal disagreed and said that the rule should remain untouched. Per Brooke LJ:
"The damage that may on occasion be done by refusing an injunction where a less strict rule would facilitate its grant pales into insignificance compared with the damage which would be done to freedom of expression and the freedom of the press if the rule in Bonnard v. Perryman was relaxed."
Facts
On 10 October 2004, the Mail on Sunday published an article suggesting that there was a link between Martha Greene, a businesswoman and close friend of Cherie Blair, and Peter Foster. The newspaper stated that it had seen emails between Foster, a convicted fraudster, and Ms Greene in which she discussed assisting him with a business venture selling diet pills.
Within days the claimant's solicitors had complained to the newspaper stating that she did not send any of the emails which the paper referred to and that she was not connected with Foster in any way. At the same time, the newspaper wrote to the claimant asking for details about the contents of the emails in preparation for a further article the following Sunday. The claimant replied that the emails were forgeries and that she opposed publication of what she claimed were the false allegations of a conman.
The claimant sought an injunction on Saturday 16 October to restrain the Mail on Sunday from publishing the proposed article about her. Mr Justice Fulford refused to grant a permanent injunction, but granted a temporary injunction to preserve the position pending the outcome of the claimant's appeal.
Ruling
The judgment provides a helpful review of authorities on the law of prior restraint in defamation cases, and ultimately concludes that the rule in Bonnard v Perryman should continue to prevail in the favour of the media.
On appeal both sides submitted fresh evidence by computer experts in relation to the provenance of the emails who disagreed as to whether they were or were not genuine. The Court held that the claimant had failed to advance any "unassailable knock-out evidence" which was capable of demonstrating that the emails were fake. This shows clearly how high the evidential burden is on a claimant in these circumstances to show that a justification defence is going to be impossible for the newspaper to make out.
The claimant alternatively argued that, even if the newspaper showed that it intended to advance a plausible justification defence at trial, the Court's refusal to grant an interim injunction to her was incompatible with the Human Rights Act 1998 ("the Act"). This was advanced on two bases: that s.12(3) of the Act had set a new test governing prior restraint which should be applied to all cases involving the media; and that under s.6 of the Act the Court was obliged to carry out the balancing test of the competing human rights of the claimant's right to reputation and the defendant's right to freedom of speech.
Section 12(3), which was given detailed consideration by the House of Lords in the Cream Holdings case, provides that no interim relief restraining publication is to be granted unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. The claimant said that this test effectively ousted the rule in Bonnard v. Perryman. But the Court of Appeal said that, as a matter of statutory construction, it was impossible to find that a section of an Act of Parliament which was intended to protect the media's right to freedom of expression could have unintentionally undermined it and achieved the opposite effect.
As to whether the Court was required to conduct a balancing exercise, it accepted that the claimant's right to protect her reputation was an Article 8 right and did bring the Act into play. But it held that the claimant's right to a fair reputation was an issue for the jury at trial and it was only at that stage that it could be determined whether there was a right to be vindicated. It was therefore premature at an interlocutory stage to consider violation of a right, as that right had not yet been established. As Brooke LJ stated:
"People with a fair reputation they do not deserve could stifle public criticism by obtaining injunctions simply because on necessarily incomplete information a court thought it was more likely than not that they would defeat a defence of justification at the trial".
The Court held that there was a clear distinction between defamation and breach of confidence concerning interim injunctions and dismissed the appeal.
Comment
The rule in Bonnard v. Perryman remains good law and therefore a claimant will not succeed in obtaining an interim injunction where a defendant indicates that it will advance a defence of justification, fair comment or privilege, unless it can show that such defence will be hopeless at trial.
This judgment is firmly in the media's favour and underlines that the Human Rights Act 1998 has not swept away all other common law principles. Taken together with the recent judgment in Cream Holdings, the media should now be confident that the claimant will need to make out a case that it is more likely than not to succeed on a trial for breach of confidence, and a wholly exceptional case in defamation before a Court will halt publication.
The Court also had a clear mind to simply what was practical at the interim stage, particularly that pre-publication it is impossible to know what the publisher actually intends to say. It is too early to be able to ascertain whether there is or is not a libellous statement, when in fact, there is as yet no statement at all. It was clear the Court felt it would be wholly wrong for a judge to become involved in the process of dictating to a media defendant what they would and would not be allowed to print or broadcast.
