CF & L Limited & Ors v Kieran Fraser & Ors

An interim injunction in defamation will ordinarily be refused where the defendant relies on truth, honest opinion or another defence unless that defence is bound to fail. For companies trading for profit, serious harm also requires serious financial loss, which must be properly pleaded and supported by evidence. The threshold is especially important for consumer reviews, where honest opinion may protect strongly worded, unfair or unreasonable criticism if genuinely held and based on indicated facts.

Harassment requires a course of conduct on at least two occasions which is objectively oppressive and unacceptable. Rudeness, frustration and ordinary business disputes do not ordinarily meet that threshold. An injunction restraining publication under section 12(3) of the Human Rights Act 1998 requires a real prospect of success at trial, and misuse of private information relief requires a present and significant risk of further publication.

The claimants, two companies and their common director, sought interim injunctions against the defendants arising from critical Trustpilot and Google reviews concerning a water-cooler contract. The applications alleged defamation, harassment and misuse of private information.

The corporate claimants sought removal of three reviews. The harassment allegations concerned a telephone call, email correspondence and publication of health-related information about the third claimant. The defendant disputed the alleged threats, relied on truth and honest opinion in relation to the reviews, and amended the Google review during the hearing to remove the health-related information.

The central questions were whether the defences to the defamation claims were bound to fail, whether the claimants were likely to establish harassment or misuse of private information at trial, and whether any continuing risk justified interim relief.

1. Defamation. The applications by the corporate claimants to restrain publication of the reviews were refused. Under the rule in Bonnard v Perryman, reaffirmed after the Human Rights Act 1998 in Greene v Associated Newspapers, an interim libel injunction should not be granted where a defence is available unless that defence is bound to fail. The relevant test was also stated in Coys Limited v Autocherish.
2. The companies had not properly pleaded or evidenced serious financial loss, as required by section 1(2) of the Defamation Act 2013. That weakness was not determinative, because the defendant’s honest opinion defence was not bound to fail. The reviews could plausibly be understood as genuinely held, strongly expressed opinion about allegedly onerous and opaque contractual arrangements. The use of terms such as criminal could be understood in a pejorative rather than literal sense. Consumer criticism attracts a strong public interest.
3. Harassment. The claimants were not likely to establish the statutory and common-law requirements. The email correspondence was regrettable and rude but did not cross the threshold of oppressive and unacceptable conduct. The publication of health information was not targeted at the third claimant, who was not named, and the defendant had received it as an explanation without being told it was confidential.
4. The alleged telephone conduct was disputed and, even on the claimants’ account, involved one call, expressions of frustration and threatened action against the companies rather than threats against an individual. It therefore did not establish a course of conduct on at least two occasions or conduct sufficiently grave to sustain liability. The application also failed the likelihood-of-success threshold under section 12(3) of the Human Rights Act 1998.
5. Misuse of private information. Health-related information ordinarily attracts a reasonable expectation of privacy. However, the defendant had removed the information from the review during the hearing, and there was no significant present risk of republication. The injunction application was therefore refused.
6. The judge noted that section 10 of the Defamation Act 2013 might affect the claims against defendants who were not authors, editors or publishers, although no application on that issue was before the court. Directions were to be given to rectify pleading and statement-of-truth deficiencies.