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Interlocutory Injunctions in Defamation Actions and the New Zealand Bill of Rights Act 1990

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Interlocutory Injunctions in Defamation Actions and the New Zealand Bill of Rights Act 1990 Interlocutory Injunctions in Defamation Actions and the New Zealand Bill of Rights Act 1990 Simon Penlington* I: INTRODUCTION The long title shows that, in affirming the rights and freedoms contained in the Bill of Rights, the Act requires development of the law where necessary. Such a measure is not to be approached as if it did no more than preserve the status quo. I Cooke P's statement in Ministry of Transport v Noort indicates that a new approach will be taken to give effect to the fights affirmed in the New Zealand Bill 3 of Rights Act 1990.2 This approach confirms the demise of the frozen fights view. However, three weeks earlier, his Honour had declined to use the Bill of Rights to 4 review the law of interlocutory injunctions in defamation actions. In this article I examine the current law governing interlocutory injunctions in defamation actions, and argue that the law is in need of reform. I suggest that the Bill of Rights should be used to remedy the situation, relying on the statutory fight to freedom of expression contained in s 14 of the Bill of Rights. * BA (Victoria) I Ministry of Transport v Noort [1992] 3 NZLR 260, 270 (CA). 2 Hereafter Bill of Rights. 3 Robertson (ed), Adams on Criminal Law (4th ed 1992) ch 10.2.05. 4 Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406 (CA). Auckland University Law Review II: THE PRESENT LAW 1. The Position of the Media In most defamation actions, the defendants are members of the media. In common law jurisdictions, freedom of the media stems from the individuals right 5 to freedom of speech. The common law confers no privilege on the press. Nevertheless, the right to receive information and opinion freely is clearly recog- nised as fundamental. The complexity of modem society means that citizens must rely on the media to inform them of the activities of government and public officials. In doing this, the media performs a vital public function. The United Kingdom Royal Commission on the Press described this public function of the 6 media: The press [is] the chief agency for instructing the public on the main issues of the day. The importance of this function needs no emphasis. The democratic form of society demands of its members an active and intelligent participation in the affairs of their community, whether local or national ....Democratic society, therefore, needs a clear and truthful account of events, of their background and their causes; a forum for discussion and informed criticism; and a means whereby individuals and groups can express a point of view or advocate a cause. However, many would agree with Sir Geoffrey Palmer who describes the "vast gulf between [such ideals] and the practical performance of the media in [New Zealand]." 7 As the following discussion of the New Zealand case law demon- strates, our judges adopt very different views in relation to the need to protect the freedom of the media. 2. The Doctrine of Prior Restraint The doctrine of prior restraint affords some recognition to the value of freedom of expression. The doctrine prevents a court from granting interlocutory injunc- tions in defamation actions other than in "exceptional" circumstances. It is by no means a recent development. When, in 1695, England renounced executive censorship of the press, Blackstone described the liberty thus established as 8 follows: The liberty of the press is indeed essential to the nature of a free state: but this consists in laying down no previous restraints upon publications ....Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous or illegal, he must take the consequences of his temerity. 5 Arnold v King-Emperor [1914] AC 644. 6 Report of the Royal Commission on the Press 1947-49, 100 reprinted in "The Standard by which the Press Should be Judged" in Berelson & Janowitz (eds), Reader in Public Opinion and Communication (2nd ed 1966) 535-6, quoted in Palmer, New Zealand's Constitution in Crisis (1992) 203. 7 lbid, 201. 8 4 BI Com 151, 152. Emphasis added. Interlocutory Injunctions in Defamation Actions This passage is often cited as the origin of the doctrine of prior restraint. 9 Blackstone clearly envisaged that the media would pay appropriate penalties after the publication of "improper" material. However, he would not permit "previous restraints". The granting of an interlocutory injunction is a form of previous restraint. Blackstone's position has been adopted to varying extents by the common law courts. 3. The American Position In the United States, the First Amendment guarantee of freedom of speech reinforces the Blackstonian principle. Not surprisingly, the most faithful applica- tion of Blackstone's doctrine has come from the United States Supreme Court. Near v Minnesota10 is the leading case in this area. The case concerned a Minnesota statute which empowered the granting of interlocutory injunctions to prevent publication of defamatory and scandalous statements. The Supreme Court held that this constituted prior restraint of publication. This was a form of censorship, and therefore the statute was unconstitutional. The Court held that the statute could not be justified because, in order to avoid an injunction, a publisher would have to establish that its statement was true, published with good motives and for justifiable ends. If this were permissible, it would be equally possible for legislation to force a publisher to justify his or her statement to a court at any time. Further, the legislature could provide machinery for determining what constitutes justifiable ends, and restrain publication accordingly. The Court concluded that it would be but a step to a complete system of censorship. 1 Such censorship was seen to be barred by the Blackstonian principles incorporated in the constitution. As a result, United States courts have the jurisdiction to grant interlocutory injunctions in defamation actions only in exceptional cases. 12 Unless there is a need to protect national security or prevent obscenity, the granting of an injunction is inconsistent with the doctrine of prior restraint and the principle of freedom of expression. 13 4. The English Position 14 (a) The classic case of Bonnard v Perryman Initially, English courts adhered completely to Blackstone's doctrine. This was, however, due to procedural restrictions. Before the Common Law Procedure Act 1854, the courts had no jurisdiction to grant injunctions in libel actions. In 9 See, for example, Near v Minnesota 283 US 697 (1931). 10 Ibid. 11 Ibid, 721. 12 Ibid, 716. 13 Ibid. 14 [189112 Ch 269 (CA). Auckland University Law Review 1891, the five member Court of Appeal held in Bonnard v Perryman that it had jurisdiction to grant interlocutory injunctions in libel actions according to ss 79 and 82 of the 1854 Act. Bonnard established an exception to the general rules applying to interlocutory injunctions. Counsel argued that the general principles which applied in determining such an application were whether "the balance of convenience and inconvenience is in favour of granting an injunction" and "is it just and convenient" to do so". 15 The Court rejected this argument. Two reasons were given for treating defamation actions as an exception to the general rules. First, an injunction to restrain defamation prevents "free speech". According to Lord Coleridge CJ, the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. 16 Indeed, often a very wholesome act is performed in the publication and repetition of an alleged libel. 17 Secondly, the courts should not usurp the role of the jury as trier of fact. Normally, it is the jury which decides whether or not a statement is defamatory. In granting an interim injunction, the court rather than the jury decides this question. As a result, the Court held that "[t]he jurisdiction [is] of a delicate nature. It ought only to be exercised in the 18 clearest cases." In Bonnard,the Court held that an interlocutory injunction should not be issued where the defendant pleads justification or the plaintiff's character is in question. Further, such an injunction should not be issued unless "any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable." 19 This decision is inconsistent with Blackstone's principle. Blackstone described the individual's absolute right to freedom from prior restraint. In Bonnard v Perryman, although recognising the public importance of the right to freedom of speech, the Court held that publications could be subject to judicial examination prior to publication. This means that the court effectively acts as a censor by assessing whether the case before it is "clearly" untruthful and libellous, that is, whether it falls within the judicially approved zone of speech. (b)Recent developments After a number of conflicting decisions concerning the approach to the grant- ing of interlocutory injunctions in the general law, the House of Lords settled the relevant principles in American Cyanamid v Ethicon Ltd.20 American Cyanamid 15 Ibid, 281. 16 Ibid, 284. 17 Ibid. 18 Coulson v Coulson (1887) 3 TLR 846 per Lord Esher MR (CA), expressly adopted by Lord Coleridge CJ in Bonnard v Perryman, supra at note 14, at 284. 19 Bonnard v Perryman, ibid. 20 [1975] AC 396. Interlocutory Injunctions in Defamation Actions identified two principles in relation to interlocutory injunction applications. First, the court must decide whether there is a serious question to be tried.
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