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Another interesting thing about the Terry case

By Steven | February 9, 2010

Look at the standard the judge applies to the injunction: the rule in Bonnard v Perryman. This is a famous case that sets the bar very high in defamation cases. Bonnard holds that no pre-trial injunction will be granted in a defamation case unless it’s entirely clear that no defence might apply. In practice, this means that defendants (usually media) need only say they’ll argue a defence (providing that argument isn’t off the planet) to defeat any chance of an interim injunction for defamation.

If you’re a plaintiff, that rather puts a premium on finding another cause of action on which to base your injunction. Privacy, perhaps? Some judges have said that they won’t countenance an attempt to do an end-run around the Bonnard rule by casting what is really a defamation case as something else. Here, Justice Tudendhat goes a step further. He’s applying the Bonnard rule in what really does seem to be a genuine privacy case – John Terry didn’t deny the affair – because “the nub of this application is a desire to protect what is in substance reputation”.

As I’ve noted before, many – perhaps most – privacy cases will concern the plaintiff’s reputation. Most of these are not defamation cases in drag. The ECHR has recognised that protection of privacy involves protection of reputation. That seems to mean that most privacy cases will be subject to a very high injunction threshold, at least where the information relates to conduct that is “voluntary, discreditable and personal (eg sexual or financial)”, as the judge puts it. He puts involuntary private matters (the example he gives is “disease”; it’s possible that sexual orientation may fit in here too), but the category doesn’t seem to be a big one. Private non-reputational material (such as the wedding photos in Douglas or private photos of children) don’t raise reputation issues either, but nor is that a very big category.

Adding to the general confusion is a recent speech by Justice Eady, who suggested that the rule in Bonnard may need to be revisited, since defamation concerns reputation, and reputation is protected under the right to private and family life (as the ECHR has found). This would mean the high threshold collapses into the usual balancing of the relative importance of the rights in play, via an “intense focus on the facts”.

Under the Hosking case in NZ, the injunction threshold in privacy cases is very high, though this is obiter and the Chief Justice in Rogers questioned whether it should be lower. It’s not clear how NZ courts will treat the developments in Britain, where the underlying constitutional framework is different, but where there is a much greater supply of case law!

Topics: Defamation, Injunctions, Privacy tort | 21 Comments »

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