Defamation – Threshold To Grant Interim Injunction
In a world where information travels at a lightning speed with just a click of a button, individuals involved in legal disputes would find themselves seeking immediate recourses to prevent the dissemination of an alleged defamatory statement.
It is trite that the law of defamation exists to protect one’s reputation while maintaining the principles of free speech. The most common and pragmatic recourse in invoking the law of defamation is to issue a cease-and-desist letter to demand an apology and the removal of the said publication. However, if the demand is unsuccessful, the next step is to urgently seek injunctive relief to restrain and/or remove the defamatory publication. This alert examines the threshold for granting interim injunctions in defamation cases.
General Principles Of Injunction
It is noted that the test for an interim injunction is not a one-size-fits-all. For completeness, the oft-quoted guidelines to determine whether an applicant’s case merits the granting of an injunctive relief were established by the House of Lords in American Cyanamid Co v Ethicom Ltd [1975] AC 396:
a)Whether there is a serious question to be tried.
b)What would be the balance of convenience of each party should the order be granted.
c)Whether an award of damages would be an adequate remedy.
It must be noted that the test enunciated in American Cyanamid relating to interim injunctions is not applicable in an action for defamation – Herbage v. Pressdram Ltd [1984] 1 WLR 1160, 1162. This principle was later affirmed by our then Supreme Court in The New Straits Times Press (M) Bhd v AirAsia Bhd [1987] 1 MLJ 3.
Injunction In Defamation Cases – The Rule In Bonnard v Perryman
Noteworthily, the threshold in granting an interim injunction in defamatory cases is extremely high. It is trite that the jurisdiction of the court to grant interim injunctions in defamation actions is exercised with the greatest caution and only in the clearest possible case.
The rationale for the rule was explained by Lord Coleridge CJ in Bonnard v Perryman [1891] 2 Ch 269:
“The right of free speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless and alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and 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.”
In Malaysia, the rule in Bonnard v Perryman was adopted in the case of The New Straits Time Press. The Supreme Court in The New Straits Time Press explained the rationale for this principle – “the questions of libel or no libel are eminently matters to be decided on facts at the trial and there is also the question of the proper meaning to be assigned to the words used in a particular statement”.
However, this does not allude that there is a total bar from granting an interim injunction in defamation cases. But, to restrain a defendant before the determination of these crucial questions would amount to fettering with the principle of free speech. For that reason, the court is careful issuing interim injunction in defamation actions.
The factors to be considered by the court in granting interim injunction of this species was set out in Ngoi Thiam Woh v Ctos Sdn Bhd & Ors [2001] 4 MLJ 510:
a)That the statement is unarguably defamatory.
b)That there are no grounds for concluding that the statement may be true.
c)There is no other defence which might succeed.
d)There is evidence of an intention to repeat or publish the defamatory statement.
This test was affirmed by the Court of Appeal in Tony Pua Kiam Wee v Dato’ Sri Mohd Najib Tun Hj Abdul Razak [2020] 3 MLJ 102 which further held:
“[4] It is important to note that an interlocutory injunction to restrain the circulation or publication of purported defamatory material which has direct nexus to the public and freedom of speech under art 10 of the Federal Constitution is rarely given unless the language used is grossly scandalous and not related to the truth or falsity of the statement…”
It is settled law that no interim injunction will be granted if the defendant states his intention of pleading a recognised defence, unless the plaintiff can satisfy the court that the defence will fail. The court in Lakefront Residence Sdn Bhd v Tetuan Lui & Bhullar & 3 Ors [2022] 3 CLJ 874 held that as a general rule, an interim restraining order should not be entered against a defendant in a defamation suit, especially when the defence of qualified privilege, fair comment, justification or even the Reynold‘s defence may potentially be raised unless the above 4 factors are satisfied.
Injunction In Defamation Cases – The Burden Of Proof
It is important to note that the burden of proof vests with the plaintiff to demonstrate that the injunction ought to be granted. In Dato’ Seri S Samy Vellu v Penerbitan Sahabat (M) Sdn Bhd & Anor (No.3) [2005] 5 MLJ 561, the High Court held that the plaintiff must demonstrate to the court that the statements made were patently untrue.
The same principle was reaffirmed in Tony Pua Kiam Wee v Dato’ Sri Mohd Najib Tun Hj Abdul Razak [2018] 3 CLJ 22 where the Court of Appeal held that the plaintiff must show that the defendant’s plea of justification and qualified privilege are bound to fail or that the statements are obviously untrue.
Previously, RDS had successfully obtained an interim injunction against Datuk Dr Mohd Puad Zarkashi restraining him or his agent or representative from republishing, reposting or resharing the allegedly defamatory statements on his Facebook page. As a result of the injunction order, the said Facebook post was also removed by Datuk Dr Mohd Puad – read more here. RDS had also successfully resisted an injunction application filed by Datuk Seri Dr Ahmad Zahid Hamidi against Tan Sri Muhyiddin Yassin (TSMY) as the court was not satisfied that the allegations made by TSMY were patently false and untrue.
Conclusion
Owing to the court’s reluctance to fetter free speech, interim injunctions are not readily granted in defamation actions. Although monetary compensation is the primary remedy available to plaintiffs in a defamation action, this does not ipso facto mean that damages alone is an adequate remedy. In Dato' Seri Anwar Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 2 MLJ 492, the value of one’s reputation was described as a form of honour:
“In any discussion of reputation, there is the customary or some say obligatory reference to Shakespeare's characterisation of 'good name' as the 'immediate jewel' of the soul. The 'purse' was 'trash' when compared to the value of a 'good name'. Some believe that reputation is a form of honour. So dishonour or loss of face is an absolute fall from grace.”
It was against this backdrop of protecting one’s reputation that the law of defamation exists.
13 June 2023