The truth can still ward off injunctions

The fear that a last-minute injunction might prevent publication of a story is a familiar one for journalists.

Where, however, the journalist asserts that the article is true, the law protects the journalist’s right to free speech.

The rule in Bonnard v Perryman discourages courts from granting injunctions where the defendant informs the court that the defamatory allegations are true. The position can be more complicated, however, when the journalist is dealing with material that is not only defamatory but is also clearly confidential or private.

There has been concern that the operation of the 1998 Human Rights Act might temper the rule in Bonnard v. Perryman. The recent case of Maris & Ors v Walsh touched on these issues and reaffirmed that the court will “tread carefully” before granting such an injunction.

Mr Walsh had been employed by the claimants and intended to publish information about them which was both confidential and defamatory. The information included business projections, internal instructions about share transfers and the personal tax details of Mr Maris and was clearly confidential.

Mr Walsh had received it under an obligation of confidence and the use he was threatening to make of the information would be unauthorised and to the claimants’ detriment and there was no public interest defence.

Mr Walsh’s right to freedom of expression under the Human Rights Act had to be taken into account but, as the judge concluded that the claimants had a real prospect of succeeding on their claim at trial, it did not trump the claimants’ rights.

In relation to the libel, Mr Walsh had compiled what was referred to in court as a “do-do list” of statements about Mr Maris and the companies under his control, all of which were seriously defamatory. Confirming the rule in Bonnard, the judge stated that the court would not generally grant an injunction where the defendant asserts an intention to justify what he wishes to publish. Had Mr Walsh shown an intention to demonstrate the truth of his “do-do list”, the court might have been reluctant to grant the injunction.

However, Mr Walsh made no such assertion and indeed did not appear at the hearing.

The judge found that there was abundant evidence to suggest that the defamatory allegations against Mr Maris and the companies were plainly untrue. An injunction was therefore granted to restrain Mr Walsh from publishing his “do-do list”.

It is not clear what the judge would have done had Mr Walsh’s case been more meritorious and had he asserted that the allegations were true. This would have placed the focus clearly on the tensions between the right to confidence against the right to free speech. However, the outcome of this case does not affect the rule in Bonnard v Perryman.

Catherine Hurst is an associate at Addleshaw Goddard

by Catherine Hurst

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