Greene v Associated Newspapers Ltd

In a defamation action, the court will not restrain publication before trial unless it is clear that no defence will succeed. A defendant’s stated intention to justify the publication therefore defeats interim relief unless that defence is bound to fail.

Section 12(3) of the Human Rights Act 1998 does not replace this rule with a balance-of-probabilities test. Nor does Convention-based balancing require its relaxation. Before trial, an asserted right to reputation carries limited weight because truth and the availability of a defence remain unresolved. Defamation must be distinguished from privacy and confidentiality claims, where publication may cause irreversible loss.

The claimant sought an interim injunction preventing Associated Newspapers Ltd from publishing allegations in The Mail on Sunday about her supposed business dealings with a convicted fraudster. She denied sending emails on which the proposed article was based and alleged that they were forgeries. The publisher maintained that it could justify the article.

Fulford J found that the claimant was more likely than not to establish forgery at trial, but that she had not shown clearly that the justification defence would fail. Applying the rule in Bonnard v Perryman, he refused the injunction in [2004] EWHC 2322 (QB), while temporarily preserving the position pending appeal.

The central issue was whether section 12(3), or section 6, of the Human Rights Act 1998 had weakened the established rule governing prior restraint in defamation proceedings.

1. Appeal dismissed. The court held that an interim restraint on publication in a defamation action may be imposed only where it is clear that no defence will succeed at trial. Where a defendant maintains that it can justify the publication, the claimant must show that the defence is bound to fail. The ordinary American Cyanamid approach does not apply because defamation actions present special circumstances.

2. The rule protects freedom of speech and avoids usurping the tribunal charged with deciding whether the publication is defamatory and whether a defence is established. It also reflects the practical inability of a court, before disclosure and cross-examination, to resolve disputes involving credibility and detailed documents. If the material may be true, the court should not prevent publication. If the defence ultimately fails, damages and public vindication remain available.

3. Section 12(3) of the Human Rights Act 1998 did not weaken the rule. Section 12 was enacted to strengthen protection for freedom of expression by imposing a threshold higher than the ordinary serious-question test. Parliament could not be taken to have abrogated the established law of defamation indirectly. Common law is displaced only by express provision or clear implication.

4. Assuming that reputation falls within article 8 of the Convention, section 6 did not require a different result. At trial, English defamation law protects reputation by placing on the defendant the burden of establishing justification or another defence. Before trial, the asserted reputational right cannot sensibly be treated as violated while truth remains unresolved. The potential harm caused by refusing restraint is outweighed by the damage that relaxation of the rule would cause to freedom of expression and freedom of the press.

5. The balancing principles applicable where articles 8 and 10 conflict did not make the rule mechanical or incompatible with Convention rights. Defamation differs from privacy, confidentiality and national-security cases, where disclosure may cause an irreversible loss. The claimant’s further expert evidence conflicted directly with the publisher’s evidence. It did not make forgery clear or provide the unassailable evidence required by the governing rule.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2004] EWCA Civ 1462 . The established rule against prior restraint in defamation actions remained applicable.
2. High Court, Queen’s Bench Division: Fulford J refused the claimant’s application for an interim injunction in [2004] EWHC 2322 (QB), but granted temporary relief pending appeal.