prior restraint – cearta.ie

In my previous post, I discussed a temporary injunction obtained by music promoter David Kavanagh to prevent the sale of Melanie Verwoerd‘s memoir When We Dance. The book charts her Afrikaner upbringing, her marriage to the grandson of an architect of apartheid, her anti-apartheid involvement with the African National Congress, her time as South African ambassador to Ireland and as head of UNICEF Ireland, and her relationship with celebrity DJ Gerry Ryan until his unexpected death on the night of 29 April 2010.

When the matter was due to return to the High Court, Laffoy J was told that it had been settled on the basis of a statement which would be read out in court and would be inserted as an erratum slip into the books when they go on sale (see Irish Independent | Irish Times).

The statement said that Ms Verwoerd was happy to acknowledge that Mr Kavanagh was and remained a good friend of Gerry Ryan, that it was to Mr Kavanagh that Gerry turned for help shortly before his untimely death, and that Mr Kavanagh had indicated he would help in whatever way he could to alleviate the financial pressure on Gerry.…

When we dance to the High Court for an injunction

10 October, 201215 March, 2013

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| Defamation, prior restraint

I have written before on this blog about prior restraints and temporary and permanent injunctions in defamation cases. Not long after the South African Constitutional Court effectively outlawed prior restraint in that jurisdiction (see Print Media South Africa v Minister of Home Affairs [2012] ZACC 22 (28 September 2012); blogged here), I learn that Gilligan J in the High Court in Ireland has today granted temporary injunctions to prevent the sale of a memoir written by the South African partner of a deceased celebrity Irish DJ (cover left):

Gerry Ryan biography will not go sale after court challenge
Melanie’s book on Gerry Ryan pulled off shelves in court row
Melanie memoir pulled from shelves
Publication of Gerry Ryan book delayed pending court action
Publication of Verwoerd book on Ryan restrained
Verwoerd book put on hold following court hearing
Verwoerd book put on hold following court hearing

Given the parties involved, it is unsurprising that there is intense media interest in the case. However, the legal issues are interesting too. Section 33 of the Defamation Act, 2009 (also here) provides:

(1) The High Court … may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.

…

Prior restraint and permanent injunctions in defamation cases – updated

23 February, 201114 September, 2018

| 5 Comments

| Defamation, Defamation Act 2009, Freedom of Expression, prior restraint

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.…

Prior restraint and temporary injunctions in defamation cases

15 February, 201123 September, 2016

| 7 Comments

| Defamation, Defamation Act 2009, Freedom of Expression, prior restraint

Some orders have been made on foot of the Defamation Act, 2009 (also here) – see, for example, Lowry v Smyth (background here and here; coverage of the order here), Mellon v Associated Newspapers (coverage here), and Meegan v Associated Newspapers (coverage here) – but Watters v Independent Star [2010] IECC 1 (03 November 2010) remains the only reported judgment on provisions of the Act. In that case, the newspaper had published an article headlined Larry’s Secret Shower Buddy, purporting to expose a a “seedy”, “weird”, “bizarre” and “secretive” homosexual relationship in prison between the plaintiff Barry Watters and Larry Murphy, a notorious criminal who had been convicted of rape and attempted murder. Matthews J held that the plaintiff had a residual reputation which was damaged by the newspaper’s allegations. He therefore granted the plaintiff a declaratory order pursuant to section 28 of the 2009 Act (also here) that the article was defamatory, and he made a further order pursuant to section 33 of the 2009 Act (also here) prohibiting the newspaper from re-publishing the defamation. Nevertheless, the newspaper repeated the defamation: in an article alongside a photograph of Watters the newspaper had stated:

We may have to apologise to this revolting pervert but will we mean it?

…

Wendy Seltzer on the DMCA’s Effects on Free Speech

29 January, 2011

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| 1A, Copyright, General, prior restraint

Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. … Under the DMCA, process for an accused infringer is limited. … If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. …

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

via bloglawblog.com

See Wendy Seltzer “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment” 24 (1) Harvard Journal of Law & Technology 172 (2010) (pdf).

…

Freedom of expression in the crosshairs

12 January, 20116 November, 2012

| 3 Comments

| Freedom of Expression, prior restraint

In the aftermath of the attempted assassination of Representative Gabrielle Giffords and the murder of six other people in Arizona last week, a fierce debate has broken out over the heated political rhetoric – often coarse, martial, and vitriolic – that is now distressingly commonplace in US political discourse. The specific background is a map which appeared on Sarah Palin‘s website targeting the seats of political opponents – including Rep. Giffords – in rifle-sight cross-hairs, and which has therefore focussed signficant attention on Palin’s confused response to the tragedy. Of course, politicians and pundits across the political spectrum have used such language and imagery, and the issues of principle arise in the context of the general standard of debate rather than in the context of any particular politician, pundit or party. I want in this post to set out some of the general free speech arguments that I have come across since Saturday. …

A good book is the precious lifeblood of a master spirit

23 November, 20106 December, 2010

| 5 Comments

| Blasphemy, Censorship, Freedom of Expression, prior restraint

The title of this post is taken from the third paragraph of Milton’s Areopagitica. As I commented in an earlier post, one of the classic liberal justifications for freedom of expression was stated by John Milton (pitctured left) in his Areopagitica – A Speech for the Liberty of Unlicenc’d Printing, to the Parlament of England. According to The Writer’s Almanac with Garrison Keillor (with added links):

It was on this day in 1644 that John Milton published a pamphlet called Areopagitica, arguing for freedom from censorship. He said,

I wrote my Areopagitica in order to deliver the press from the restraints with which it was encumbered; that the power of determining what was true and what was false, what ought to be published and what to be suppressed, might no longer be entrusted to a few illiterate and illiberal individuals, who refused their sanction to any work which contained views or sentiments at all above the level of vulgar superstition.

He compared the censoring of books to the Spanish Inquisition and claimed that the government wanted “to bring a famine upon our minds again.”

…

Blasphemy from ancient Greece to modern Ireland

12 November, 201016 November, 2010

| 4 Comments

| Blasphemy, Conferences, Lectures, Papers and Workshops, criminal libel, prior restraint

Earlier this week, I had the great good fortune to attend an enjoyable lecture presented by the, Long Room Hub, Trinity College Dublin. It was

Blasphemy: Historical anachronism or modern crime?

by Professor David Nash, Department of History, Oxford Brookes University, UK. He is the author of Blasphemy in Modern Britain 1789-present (Ashgate Publishing, 1999 | Amazon) and Blasphemy in the Christian World (Oxford University Press, 2007 hbk; 2010 pbk | Amazon | cover left). His talk was in three parts: the historical context; the unhappy fit with current models and theories of human development; and the implications of taking blasphemy seriously again.

First, he used the historical context to illustrate the various reasons for longevity and adaptability of concepts of blasphemy. In ancient Greece, blasphemy consisted of speaking ill of the gods and of disturbing the peace. In early Christian dogma after the Council of Nicea in AD 325, it served to reinforce the virtues of orthodoxy. Medieval Christian Europe saw blasphemy as an element of heresy, but in the 13th century, blasphemy becomes decoupled from heresy, and it evolves into what Nash charaterised as the ‘passive blasphemy’ model, where the definition and enforcement of blasphemy is a matter for the State, seeking to eradicate states of mind and opinion that are dangerous to the community.…

cearta.ie

Category: prior restraint

And the dance goes on

When we dance to the High Court for an injunction

Prior restraint and permanent injunctions in defamation cases – updated

Prior restraint and temporary injunctions in defamation cases

Wendy Seltzer on the DMCA’s Effects on Free Speech

Freedom of expression in the crosshairs

A good book is the precious lifeblood of a master spirit

Blasphemy from ancient Greece to modern Ireland