Injunctions in defamation: The essence of judicial censorship

By Ali Abdi

In considering whether or not to grant an interlocutory injunction in defamation cases, courts of law have generally upheld the view that where a defendant pleads justification, fair comment or privilege and states that he or she will be able to support this plea with evidence at the trial, the injunction will be refused. This caution is borne of judicial recognition that “free and general discussion of public matters is fundamental to a democratic society”, and is excused in part because, in all but the most extraordinary cases, compensatory damages will be an adequate remedy.

However, in recent years, an increasing number of courts have begun granting and upholding injunctions in defamation cases. This prompts questions about why courts have been inclined to unearth a long-entombed legal doctrine. And it prompts questions about whether the passage of time has rendered such injunctions any more constitutionally valid even if it has rendered them more popular.

A probable explanation for the significant uptick in injunctions in defamation cases is that courts have been drawn toward injunctive relief because they are struggling to contain the effects and challenges posed by defamation cases. Further, a defamed individual is likely to seek an injunction because damages may not fully compensate the injury, and that the plaintiff, above all else, simply wants the injurious speech to stop. A defamation plaintiff—and a court—may believe that an order enforceable through contempt proceedings will be more effective than a meaningless money judgment in discouraging future libels.

Intriguingly, the Constitution of Kenya has express provisions for the protection of the rights and fundamental freedoms to each and every individual. Article 33 provides that “every person has the right to freedom of expression, which includes… freedom to seek, receive or impart information or ideas. Therefore, would an injunction in a defamation case amount to a prior restraint and contravention of free speech?

Lord Coleridge stated in the seminal case of “Bonnard v Perryman (1891) 2 CH 269” thus:
“…But it is obvious that the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. 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 an 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”

Therefore, any tale about defamation always starts with the question; do injunctions in a defamation case contravene free speech, an element of natural law?

It has long been a fixture of law that libel plaintiffs are not entitled to injunctive relief; their remedies are solely monetary. Indeed, it has been repeated as a truism, “Equity will not enjoin a libel.” It is a precept that rests on one of the strongest presumptions in free speech jurisprudence, that injunctions against libel and other kinds of speech are unconstitutional prior restraints. But it may not be true, at least not anymore.

In any situation, when an individual or organization believes its reputation has been harmed, the first common response is to file a defamation lawsuit. Defamation, which encompasses both libel and slander, is a dignitary tort directed at remedying harm to a plaintiff’s reputation caused by false statements of fact.

Therefore, to elaborate what defamation entails, one must first understand the distinct concepts of reputation as property, as honour and as dignity. While reputation as property is conceptualised as an asset earned by an individual’s efforts and labour, and reputation as honour is thought of as an individual’s fulfilment to the requirements of their social position, reputation as dignity is concerned with protection of an individual’s intrinsic worth.

Justice Stewart in Rosenblatt v Baer 383 US 75 (1966) observed:
“The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no· more than our basic concept of the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty.”

In defamation cases, where the gist of the claim is that the words at issue are alleged to be defamatory (that is, tending to injure the reputation) of the claimant and, as such, presumed to be false , the common law rule in Bonnard v Perryman has long governed this area of law. The essential principle provides that although the courts possess a jurisdiction to restrain publication, “in all but exceptional cases” they should not issue an interlocutory injunction to restrain the publication of a libel which the defence says it will seek to prove is true except where it is clear that that defence will fail. The court must consider whether there is a serious issue to be tried and, if so, where the balance of convenience or justice lies.

In Kenya, there has recently been an upsurge in defamation cases of which this raises the issue of what guidelines or procedure do Kenyan courts use when granting injunctions in demation cases?

It was held in the case Coulson –vs­ Coulson (1887) 3 TLR  846, and further propounded in the case of Bonnard v Perryman (1891) 2 CH 269. That before granting an order for interim injunction, certain requirements had to be met; (a) the claimant must show that the allegations were clearly defamatory. (b) The claimant must demonstrate that the defendant threatens to publish or further publish the defamatory words or similar words. (c) Where the defendant states that he intends to rely on any substantive defence the court will not grant an injunction even where (a) and (b) are satisfied unless the defendant is acting in bad faith or the defence will inevitably fail; (d) The claimant must show that the publication will result in irreparable injury that cannot be fully compensated in damages; and  (e) The claimant will generally be required to offer a cross undertaking as to damages as a prerequisite to the grant of an interim injunction.

As far as the first factor is concerned, it can be considered as an eternally justified principle. The court must come to the conclusion that prima facie the publication or the utterances are defamatory that is they have a derogatory imputation to the reputation or character of the plaintiff.

At this stage, the Plaintiff only has to show that prima facie the publication is defamatory of him and having done so, he does not have to prove that the defamatory words are false. However, if the defendant pleads fair comment and in line with Order 7 Rule 5 of the Civil Procedure Rules, 2010, supports his allegations with written statement of witnesses and copies of further  documents to be relied at the trial, the court if at an interlocutory stage makes a conclusive finding on the validity of the defence of fair comment. That finding in the long run limits in its determination of the substantive suit. Thus, the application for an injunction must be dismissed because the defendant has filed a defence and pleaded fair comment on a matter of public interest.

Hon. KhamoniJ, in Cheserem vs Immediate Media Services (2000) 2 EA 371 (CCK), succintly analyzed and elucidated the principles of Interim Injunction in a defamation case whereby he stated that;

“Normally the court would not grant an interlocutory injunction when the Defendant pleads justification or fair comment because of public interest that the truth should be out and the court aims to protect a humane, truthfully and trustworthy Defendant”

The idea that an injunction is a constitutionally sound and practically viable remedy in defamation cases is, to borrow the great words of  Justice Scalia that,  “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” This particular ghoul of granting injunctions in defamation cases seems to be stronger than ever.

Therefore the real concern on any application for defamation where the defamatory nature of the words are not disputed, is whether it is ‘just and convenient’ to grant relief, and whether this is to be determined in particular by striking a balance of convenience and hardship. It is at this point, in my opinion, which the courts have for many years determined that a balance is normally struck in favour of the free discussion on matters of public or general interest.

It is trite from the above that, damages serve as an appropriate and sufficient remedy for plaintiffs in most defamation cases. Injunctions, in contrast, offer little to recommend them from a pragmatic point of view. After all, if the injunction applies only to the specific words the court has judged defamatory, then the defendant remains free to make technically different, but equally defamatory, statements. Under such circumstances, the injunction will be ineffective. On the other hand, if the injunction is framed more broadly, then the defendant must go to court any time he or she wants to say anything about the plaintiff and prove to the court that the intended statement is not defamatory. In my view, this brand of justice is a clear picture of “an essence of judicial censorship”.

In my view, Even if an injunction is limited to particular statements already found false, defamatory and uttered with the requisite mental state, a prospective prohibition on the same comments cannot guarantee satisfaction of the elements of defamation at every point in the future. That which was once false can become true, things once thought shameful can come to be viewed as benign and mental states around utterances can shift.

Of course, under these circumstances the defendant could return to court and ask for a modification of the injunction so he or she can say something otherwise prohibited. But that is, to borrow a phrase from the above, this depicts the epitome of judicial censorship.

Courts and commentators seem to have little difficulty recognizing that preliminary injunctions against defamations are unconstitutional because, well, they are preliminary and final adjudication of whether speech is protected. They need also to recognize that final injunctions are unconstitutional because, well, they are final, they threaten the longstanding and overly broad chilling effects and may end up forbidding speech that the constitution shields.

In Greene v Associated Newspapers [2004] the USA Court of Appeal upheld the rule in Bonnard on the importance of freedom of speech, that the constitutional importance in a defamation case is the pragmatic ground that until there has been disclosure of documents and cross-examination at trial, the court cannot properly assess whether what is to be said is true or not. The Kenyan Courts, based on recent defamation cases ought to follow this path of legal reasoning and  advocate that injunction in a defamation case can only be given in situations where damages are minimal compared to the effect.

The courts In defining the thin line between the effects of an injunction in a defamation application and the fundamental rights enshrined as the freedom of speech, if are to issue an injunction, they in my view should do so only if five conditions are met: (1) the injunction should be preceded by a judicial finding that the speech sought to be enjoined is defamatory; (2) the defendant must have the opportunity to have a court decide whether the plaintiff has established all of the elements of the defamation; (3) the injunction must be narrowly tailored so that it targets only speech that has been found to be defamatory; (4) the speech restrained must relate only to matters of private concern; and (5) the plaintiff must demonstrate that money damages are inadequate and an injunction will actually be effective in reducing his or her harm. An injunction issued with less process or less attention to tailoring would raise serious concerns on freedom of speech.

Therefore, an interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute.

Warily and cautiously, courts of law should bear in mind the importance and centrality of freedom of expression in a democratic process. The right to freedom of expression is protected both our supreme Constitution. The court, therefore, should be very slow to grant an injunction either prior to or after defamation, the continuing exercise of this right.

With all of that said, it seems regrettably likely that Kenyan courts will continue to experiment with injunctions in defamation cases unless and until the Supreme Court tells them to stop. The gravitational pull toward a remedy that has at least some efficacy in a social environment may, at least in the short term and in the courts, be more than our what the jurisprudence of free speech can resist. For the time being, we will have to learn to live and litigate in a land where an undead legal principle injunction in defamation cases roams unpredictably and troubles our sleep.

Until help comes, we are left in a nightmarish state of affairs. The parameters of freedom of speech and the contours of the prior restraint doctrine will not be decided against a backdrop of the great public issues of our time, like the debate over the NYS Funds. They will be decided against a backdrop of petty personal grievances and the lack thereof of specific guidelines when it comes to cases of injunctions in defamation cases and the effects of freedom of speech.

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