Acting to stop harm: the FCA and Appointed Representatives
Whilst the well-known maxim that all press is good press is still widely touted, individuals and businesses in the public eye often disagree and are becoming ever more savvy when it comes to reputation management and trying to ensure that the balance consistently tips their way. This is likely to account in part for the 24 per cent decrease in defamation claims issued in 2013. Instead of waiting for material to be published and then seeking redress, pre-emptive steps are taken before material is published to ensure that the content does not get out there in the first place.
However, in circumstances whereby pre-action correspondence falls on deaf ears, individuals and businesses may be forced to consider seeking to obtain an injunction against publication. Such a course should be carefully thought through given the difficulty in obtaining such relief, the changes in the law (especially for companies) following the Defamation Act 2013 coming into force and the fact that should the application fail, such an attempt to prevent publication may well itself be reported bringing the material the applicant was seeking to injunct to the attention of an even wider audience than originally anticipated.
The common law rule in the case of Bonnard v Perryman  against prior restraint of defamatory statements has long governed the law in this area. This rule provides that although the courts possess a jurisdiction to restrain publication, “in all but exceptional cases” they should not issue an interlocutory injunction to restrain the publication of a libel which the defence says it will seek to prove is true except where it is clear that that defence will fail. In Greene v Associated Newspapers  the Court of Appeal upheld the rule in Bonnard and determined that it was based upon the importance of freedom of speech, the constitutional importance of a jury in defamation cases, and the pragmatic ground that until there has been disclosure of documents and cross-examination at trial, the court cannot usually properly assess whether what is to be said is true or not.
The test in Bonnard is a high hurdle for applicants to overcome, and represents a higher threshold than is necessary to prevent publication of material which is said to infringe an individuals’ Article 8 ECHR privacy rights. The test in these cases is that in order to obtain an interim injunction the applicant must establish that his claim in more likely than not to succeed at trial (Cream Holdings Ltd v Banerjee .)
There is an obvious tension between the two standards in circumstances where the damage to a claimant’s reputation is likely to be similar in the event of publication and more recent case law distinguishing Bonnard suggests some movement in the law in this area.
In Sunderland Housing Group v Baines  the Court held that a generalised assertion of belief in the truth of the allegations made was not enough in circumstances whereby they are required to balance an applicants Article 8 rights with the press’ Article 10 ECHR right to freedom of expression. Eady J said:
“It seems to me at least right for a defendant who seeks to resist an injunction against publication of defamatory words to identify the defamatory meaning or meanings which he intends to justify and also to state in a witness statement verified by a statement of truth that he believes in the truth of the words in that meaning or those meanings. That, it seems to me, must be the very minimum.”
In the case of Zam v CFW  Mr Justice Tugendhat granted an interim injunction to restrain the publication of defamatory allegations concluding that:
“On the information before me I am satisfied that there is a prima facie case of libel, that there remains a threat by the Defendants to publish or further publish the words complained of, and that if publication or further publication occurs the Claimant will suffer injury which cannot fully be compensated in damages. I am in no doubt that the words complained of are defamatory. Nothing has been stated by the Defendants personally to the effect that they have a defence of justification or any other defence.”
In the case of JBW Group Ltd v BBC  (unreported) the JBW Group issued an application for an injunction against the BBC programme Panorama after it learned of undercover filming of staff working for the company. The independent production company producing the programme had sent a letter to the JBW group alleging that the company had breached relevant regulation, guidelines and committed unlawful acts by its agents. The JWB Group told the Court that they had provided a detailed response to the letter dealing comprehensively with all of the points and allegations raised. The JBW Group were unsuccessful but Mr Justice Tugendhat indicated that he would have been happy in principle to grant the injunction save that the JBW Group did not have sufficient evidence of what the BBC was actually proposing to broadcast.
It is certainly arguable that Bonnard gives precedence to freedom of expression and that the balance should be recast. Moreover, the abolition of the presumption of a jury trial means that one of the key principles supporting Bonnard no longer exists. The recent case law in this area does suggest some movement indicating that the Courts may be more willing to restrain publication of information that is false when previously they have not been. However, the fact remains that each case is fact sensitive and an exception for anonymous speech as determined in Sunderland, and a lack of defence in Zam, do not take an applicant much further in obtaining an injunction to prevent publication of damaging information in circumstances where it is true. The safest initial course is for clients to instruct solicitors as soon as possible and seek to deal with the threat to publish by means other than through the courts.
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