Rupiah's hopeless injunction

Rupiah's hopeless injunction
By Editor
Tuesday September 30, 2008 [04:00]

The right to equal protection of the law is fundamental to any just and democratic society. Whether political ally of those in power or opponent, all should be entitled to equal protection before the law. No one is above the law, which, after all, should be the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognise that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.

And we are approaching the injunction that Rupiah Banda obtained against us through abuse of the court process in the same manner. As we had indicated, we are law-abiding citizens and we will respect and obey all court orders that are issued against us.

The injunction against us stops us from publishing libelous stories or editorial comments against Rupiah. We have no problem obeying this order until it is heard inter partes on Friday. But this order does not stop us from publishing stories or editorial comments that are not libelous against Rupiah. And we shouldn’t confuse anything that is unpleasant, uncomplimentary against Rupiah as being libelous. We are certainly not public relations officers of Rupiah and we have the right to publish critical stories and comments on Rupiah. But such stories are not libelous if they are true and the comments fall under fair comment.

Moreover, this whole injunction was an abuse of the court process, which shouldn’t have been sought by Rupiah in the first place. The rule against prior restraint has been very clearly stated by Geoffrey Robertson, one of Her Majesty’s Counselor and Andrew Nicol of Middle Temple, Barrister in their book on media law:

“The media have a right to publish defamatory remarks at the risk of paying heavy damages if they cannot subsequently be justified. The courts will not stop publication of defamatory statements in any case where the person who wants to make them is prepared to defend.

Threats by angry complainants and their solicitors to stop the presses with eleventh-hour injunctions are largely bluff. The rule has been stated often enough, because plaintiffs willing to ‘try it on’ sometimes try it as far as the Court of Appeal. In one leading case, Lord Denning said: ‘the court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for the judge. But a better reason is the importance in the public interest that the truth should out.

…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. There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The court will not prejudice the issue by granting an injunction in advance of publication (Fraser v Evans 1969 1QB 349, per Lord Denning at page 360.

The rule derives from the case of Bonnard v Perryman 1891 2Ch 269).
“If the plaintiff can prove immediately and convincingly that the defendant is intending to publish palpable untruths, an injunction could be granted. Otherwise, the rule against prior restraint must prevail in libel actions. But it is surprising how often High Court judges, pressed for time and hearing only the plaintiff’s side, overlook the principle and grant an ‘interim injunction’ without inquiring whether the defendant intends to defend.


Such injunctions are normally immediately set aside on the publisher’s application or lifted by the Court of Appeal. In 1982, two experienced High Court judges were prevailed upon to grant an injunction against the circulation of information by a shipping exchange accusing the plaintiff of connection with fraud. The Court of Appeal lifted it as a matter of principle, even though a hearing on the merits was set for the following day. ‘The only safe and correct approach is not to allow an injunction to remain, even for a single day, if it was clearly wrong for it to have been granted’ (Harakas v Baltic Mercantile and Shipping Exchange 1982 2 All ER 701 at page 703 per Kerr LJ).

“The rule against prior restraint is secure in libel cases ‘because of the value the court has placed on freedom of speech and freedom of the press when balancing it against the reputation of a single individual who, if wronged, can be compensated in damages’ (Herbage v Pressdram Ltd 1984 2 All ER 769 per Griffiths LJ). It applies whenever the defendant raises the defences of justification and fair comment and will apply if the defence is to be qualified privilege unless the evidence of malice is so overwhelming that no reasonable jury would sustain the privilege.

The Court of Appeal has on this basis refused an interim injunction against Private Eye when it published details of convictions that had been ‘spent’ under the Rehabilitation of Offenders Act. It has even refused to injunct a magazine that had published an allegation that it could not justify, where it might succeed at trial for other reasons: ‘Soraya Kashoggi sought an injunction to withdraw Woman’s Own from circulation when it published a statement that she was having an extra-marital affair with a Head of State.

The magazine could not prove the truth of this statement, which it had sourced to an M15 report, but it claimed to be able to justify the ‘sting’ of the libel, namely that the plaintiff was a person given to extra-marital affairs, a number of which had been referred to in the article without attracting complaint.
The Court of Appeal held that the rule against prior restraint would still operate, given that this defence of justifying the ‘common sting’ of the allegations might succeed at trial. If it did not, the plaintiff would be adequately compensated by damages’ (Kashoggi v IPC Magazines Ltd 1986 3 All ER 577).

“One important practical benefit of this rule is that journalists can approach the subject of their investigation for a response to an article in draft without fear that they will receive a pre-publication injunction instead of a quote. However, editors and their advisors must be conscious of one trap for unwary players that can be sprung by a determined litigant who seeks an interim injunction at the outset of his action. In order to invoke the rule against prior restraint, the defendant must state on affidavit his intention to justify the allegation. If, contrary to this sworn determination, the defence of justification is not proceeded with when the matter comes to trial, his conduct in recklessly signaling a defence that does not materialise can inflate the damages alarmingly.

This will be the case especially where the actual affidavit boasts of ‘highly-placed sources’ who can be summoned to verify the allegation. Private Eye fell into this trap when it beat off an interim injunction from Robert Maxwell by promising to prove at trial that he had financed Neil Kinnock’s foreign travel in the hope of being awarded a peerage. Its defence of justification was withdrawn at the trial when its alleged ‘highly-placed sources’ went to ground. It narrowly escaped being called upon to name them, but its conduct in promising a plea of justification and persisting in such a plea until the last moment was punished by damages of 50,000 pounds. The jury found the libel itself to be worth only 5,000 pounds (Maxwell v Pressdram Ltd 1987 1 All ER 656).

“The difficulty encountered by plaintiffs in obtaining injunctions to stop libels has led to a growth in applications for injunctions on the grounds of breach of confidence, that is, that the information has been obtained from someone who is under a duty not to reveal it. In breach of confidence cases, the rule against prior restraint does not apply: even if the newspaper has a strong defence, the story may be injuncted until trial of the action if the ‘balance of convenience’ so dictates. Where freedom of speech is at stake, it is unsatisfactory to make the grant of an injunction hinge upon whether the plaintiff happens to sue for libel or breach of confidence.

“When the principle of free speech collides with the principle of fair trial, the former may have to give way. Courts may grant injunctions to stop defamatory publications that would prejudice pending criminal trials. This jurisdiction is not often used – the normal procedure is for the Attorney General to bring proceedings for contempt once the trial has concluded. It may, however, present a defendant in a criminal trial with a way of side-stepping the requirement that only the Attorney may bring actions for an intentional contempt. In 1979, the Court of Appeal, at the behest of Mr Jeremy Thorpe, stopped the Spectator from publishing an election address by Auberon Waugh, ‘Dog Lovers Candidate’ for North Devon, on the grounds that it contained matter that would prejudice Thorpe’s impending trial for conspiracy to murder (Thorpe v Waugh (unreported), Court of Appeal Transcript No.282, and Borrie and Lowe’s Law of Contempt, second edition, Butterworths, 1983, p 101).”

Clearly, the intention of this injunction against us is not noble. It is a desperate action by Rupiah which will not gain him the desired results. As long as we are truthful, honest and factual in our stories and editorial comments on Rupiah, we will not violate the injunction he has misleadingly caused the court to grant him. We are not worried about Rupiah’s hopeless injunction because it doesn’t affect us as we don’t intentionally publish libelous stories about anyone.

And in this case, we have no malice in our hearts against Rupiah and we are in no way trying to libel him. Our stories and editorial comments on Rupiah are factual and fall under the ambit of fair comment on a matter of public interest. Rupiah is a candidate in a presidential election.

The utterances, actions, records, reputations, character or personality of presidential candidates are matters of high public interest. If the media does not adequately inform the public on these issues, crooks of all hues could easily find their way into State House – we could easily end up with a buffoon like Idi Amin as our president. We have a duty to let the public know who Rupiah truly is.

And we will do this in an honest, fair, bold and courageous manner – without fear or favour. As for Rupiah, our advice is that these desperate legal actions are not doing him any good. They are actually damaging him.