In Watters v Independent Star [2010] IECC 1 (03 November 2010), the first reported judgment on the Defamation Act, 2009 (also here), Matthews J granted the plaintiff a declaratory order pursuant to section 28 of the Act (also here) that an article published by the defendant was defamatory, and he made a further order pursuant to section 33 of the Act (also here) prohibiting the newspaper from re-publishing the defamation.

In an earlier post (also here), I have already looked at some issues arising from this decision. Another critical aspect of Matthew J’s judgment was that, although the plaintiff was a convicted criminal, he nevertheless possessed a residual reputation which was damaged by the newspaper’s allegations. Of course, evidence of a plaintiff’s general bad reputation is admissible in evidence in mitigation of damages (see section 31(4)(g) and section 31(6)(a) of the Act (also here); see also Hill v Cork Examiner Publications [2001] 4 IR 219, [2001] IESC 95 (14 November 2001) and the recent decision of Tugendhat J in Hunt v Evening Standard [2011] EWHC 272 (QB) (18 February 2011)). However, this is a long way from saying that such a general bad reputation renders a plaintiff libel-proof. Moreover, the plaintiff in Watters did not seek damages, but rather sought and obtained a declaratory order and an injunction.

Section 33 of the 2009 Act allows the court to make interim, interlocutory or permanent orders prohibiting the publication or further publication of the defamatory statement in respect of which the application was made, and it was on foot of that section that Matthews J granted a permanent injunction restraining re-publication of the defamation. In my earlier post, I considered its applicability in the context of interim and interlocutory applications; and I argued that, in much the same way as the previous common law had been, section 33 had to be interpreted in the light of the protections of freedom of expression by the Constitution and the European Convention on Human Rights. In particular, since such a temporary injunction constitutes a prior restraint upon speech, applications for interim or interlocutory injunctions in defamation cases must be scrutinised with particular care.

In principle, such considerations derived from the Constitution and the Convention should also be in play when – as in Watters – an application is made under section 33 for a permanent injunction as a remedy for defamation. In the US, it has been argued that a permanent injunction imposed after trial nevertheless amounts to a prior restraint upon any subsequent speech. However, the courts have held that injunctions against certain statements based on a finding on the merits that those particular statements are defamatory effectively do not amount to prior restraints and are therefore not presumptively unconstitutional (see Balboa Island Village Inn v Lemen 156 P 3d 339 (Supreme Court of California, 2007); St James Healthcare v Cole 2008 MT 453 (Supreme Court of Montana, 2008); Hill v Petrotech Resources Corp (Supreme Court of Kentucky, 21 October 2010) (blogged here on the Volokh Conspiracy)). These cases demonstrate the confusing doctrinal consequences of the US rule against prior restraints. A final order prohibiting future publication is indeed a prior restraint upon that future speech; it would be better if the US cases accepted that rather than denying it; but they would then have to go on and hold that the full trial establishing the defamatory nature of the publication overcomes the presumption against prior restraint.

By contrast, the approach to prior restraints in Ireland, influenced by the Convention, is much more nuanced, and it does not run into the same doctrinal problems justifying a section 33 permanent injunction as a remedy after trial in defamation cases. Even if a permanent injunction does indeed constitute a prior restraint upon future speech, and thus a restriction upon the right to freedom of expression protected by the Constitution and the Convention, the question would not be whether the constitutional presumption against prior restraint has been overcome, but whether, after a close and penetrating examination of the facts, the permanent injunction is a necessary and proportionate restriction upon that right. In the circumstances of Watters v Independent Star, this test would almost certainly have been satisfied, but it may nevertheless be worth a future defendant’s while taking the point. However, given the recent demise of the Star on Sunday, it won’t be that defendant.

Update (14 Sept 2018): David S Ardia “Freedom of Speech, Defamation, and Injunctions” 55 William & Mary Law Review 1 (2013) provides a comprehensive account of when defamation injunctions would be consistent both with the First Amendment and with equitable principles. Eugne Volokh has made a similar argument, but it has not found favour in the First Circuit Court of Appeals: in Sindi v El-Moslimany (No 16-2347; 1st Cir, 11 July 2018) the Court held that most anti-libel injunctions are unconstitutional.