Justice Yashwant Varma recently in Sushil Ansal v. Endemol India P. Ltd. & Ors. [2023/DHC/000205] had occasion to examine the law in relation to grant of pre-publication injunction in relation to a web series concerning the Uphaar tragedy. While considering various Indian and international precedents on the subject, Justice Varma rejected the plea of Sushil Ansal to injunct the publication of the web series. The operative part of the decision reads as under:
Justice Varma
18. At the outset, it would be apposite to recall the fundamental precepts which govern the grant of ad interim injunctive relief. Apart from the often repeated trinity test of prima facie case, balance of convenience and irreparable injury, courts are also bound to weigh in consideration whether the issuance of the injunction would cause greater harm and perpetuate injustice, the time when the plaintiff first derived knowledge of the offending material, whether the plaintiff, if not having acquiesced, remained inert or failed to take proactive action for protection of its rights and whether it has approached the Court in good faith. These aspects assume greater significance when what is sought is a pre-publication or broadcast injunction.
19. A pre-publication or broadcast injunction would essentially be sought at a stage when the offending material is either unavailable to be comprehensively reviewed and assessed or where it is alleged that there is a grave, imminent and immediate possibility of violation of rights. In such a situation the following factors would clearly be entitled to be accorded primacy- the promptitude with which the plaintiff approaches the Court, its obligation to establish, at least prima facie, that the impending publication/broadcast is completely divorced from the truth, replete with falsehood, or evidences an imminent vilification of the individual.
20. If the Court finds that the plaintiff has either failed to initiate action with promptitude or approached the court at the first available opportunity, that would be a circumstance which would weigh heavily against the grant of an ad interim injunction. Further, if the court were to find that the material which is likely to be broadcast or published already exists in the public domain and has existed as such for a considerable period of time without an objection having been raised, that too would detract from the right of the plaintiff to seek ad interim injunctive relief.
21. On a more fundamental plane, the Court would also take into consideration the imperatives of striking a balance between the aspects of freedom of speech and expression, the dissemination of information amongst the public at large on the one hand and the injury likely to be caused to the individual. It is in the above context that courts have formulated the ―high pedestal‖ test when it comes to the grant of a pre-publication or broadcast injunction. Courts have deliberately formulated the high threshold test because the injunction would essentially be sought at a stage when the offending material is either not available to be evaluated and examined or where it is impracticable to arrive at even a prima facie conclusion whether the content is defamatory or libelous. Courts at that stage are essentially left to grapple at straws, called to base their decisions on unsubstantiated and unproven allegations and essentially asked to issue a restraint on the assumption that what would be published or broadcast would be defamatory, slanderous or amounting to libel. Such a tenuous approach cannot possibly be countenanced when a court of law is called upon to grant injunctive or equitable relief.
22. It is in light of the aforesaid that it is imperative that the plaintiff be held to be bound and obliged to establish a strong prima facie case as a critical and essential pre-condition. Secondly, such a plaintiff must be held bound to establish that what is about to be published or broadcast is fundamentally removed from the truth, denigratory or slanderous. In the absence of the aforesaid tests being met, an injunction would justifiably be refused.
23. When the aforesaid basic precepts are applied to the facts of the present case, the Court finds itself unable to hold in favour of the plaintiff for reasons which follow.
24. The Court at the outset notes that the web series in question is yet to be aired. It has thus had no occasion to view the same in its entirety. It would be wholly inappropriate to grant injunctive reliefs at the ad interim stage even before the fictional work is viewed and properly examined in its entirety. In the absence of the aforesaid material being available to be viewed or examined it would also be inexpedient to even venture to return prima facie findings with respect to the allegation of the plaintiff that the series would carry defamatory and vilifying statements. The Court also takes into consideration the Disclaimer which is proposed to preface the web series and which merely claims to be "inspired" by the Book authored by defendants 4 and 5.
25. If the claim for ad interim relief were to be considered therefore, solely on the basis of the contents of the Book, then too the plaintiff would clearly not be entitled to ad interim reliefs for the following reasons. Undisputedly the work authored by defendants 4 and 5 was published way back in 2016. This is clearly evident from the various newspaper articles and media reports which have been placed for the perusal of the Court. The plaintiff chose, for reasons best known to him, not to initiate any injunctive action in respect of the said work when it came to be originally published on 19 September 2016. A slothful or sluggish plaintiff seeking an injunction of the nature which is sought in these proceedings cannot be allowed to claim such reliefs.
26. Undisputedly, the horrific incident which occurred on 13 June 1997 has been the subject matter of public debate and discussion since then. The unimaginable tragedy which unfolded on that date had made a nation bow its head in shame. The negligent conduct of the plaintiff is well documented and also fell for adverse comment by our Supreme Court as would be evident from the extracts of its decision reproduced hereinabove. Paragraph 122 of the said decision is an iteration of avarice and greed.
27. The Court must also necessarily bear in mind at this stage that the work on which the web series is based has been penned by parents who had lost teenaged children in the unfortunate incident. It is a story which alleges a systemic failure, manifests a cry of anguish against the manner in which the incident was prosecuted and tried. It essentially represents their perspective and opinion. A fictional rendition of their trials and tribulations cannot, prima facie, be presumed to be defamatory. More fundamentally, their personal experience and perception of the incident or the culpability of the plaintiff would remain their belief, impression and understanding of the entire episode. Ultimately it would be for a reasonably informed individual acting upon contemporary standards to form his/her opinion. In any case and prima facie the Court finds itself unconvinced to record or arrive at the conclusion that the narrative penned by defendant Nos. 4 and 5 could be said to be wholly fantastical or deprived of a semblance of the truth as conceived.
28. The Court further finds that information and reportage with respect to the tragedy which unfolded has remained in circulation for the past 26 years. Commencing from the date when the First Information Report came to be recorded and right up to the ultimate conviction of the plaintiff, the press as well as social media platforms have consistently tracked and reported developments relating to the said crime. This material was always available in the public domain. Prior to the institution of the present proceedings, the plaintiff neither alleged nor asserted that his right to a fair trial was or had been prejudiced. This Court is thus of the prima facie opinion that the right of defendant Nos. 4 and 5 to narrate their tragic journey through police precincts and court halls far outweighs the asserted and yet unsubstantiated loss of reputation of the plaintiff.
29. Regard must also be had to the fact that the Book itself had come to be published at a time when the review petitions were pending before the Supreme Court. It was also in circulation at the time when the Supreme Court ultimately proceeded to dismiss the review petitions and while the plaintiff was facing trial in the evidence tampering case. The plaintiff stood convicted in that case on 08 October 2021. He chose not to seek any injunctive relief in respect of the aforesaid Book even at that stage. The Court consequently finds no justification to consider the grant of an ad interim injunction based on something which came to be published way back in 2016.
30. The Court also finds itself unable to countenance the submission of Mr. Agarwal that since a web series is likely to have a wider circulation and a greater impact than a written work, the grant of an injunction should be considered at this stage. This since the plaintiff chose to remain indolent and took no pre-emptive steps in respect of the said work at the first available opportunity. The Court consequently finds that there exists no justification to grant ad interim relief to the plaintiff even after he failed to take appropriate steps for injunctive reliefs in respect of the Book authored and published in 2016. As was noted hereinabove, a grant of injunction at an ad interim or ex parte stage must necessarily be weighed bearing in mind whether the plaintiff has chosen to approach the Court for relief with due promptitude. The case of the plaintiff woefully fails on this score.
31. The Court is also constrained to observe that prima facie the plaintiff clearly appears to have concealed material facts and practiced misrepresentation while asserting that he became aware of the contents of the Book only on or about 08 January 2023. The disclosures which were made in the application moved by the review petitioner before the Supreme Court and which was referred to by Mr. Pahwa clearly establishes that the work penned by defendants 4 and 5 had been specifically noted and referred to in the article which came to be published in Tehelka Magazine and formed part of the record of the said application. The plaintiff stood duly served with the said application and also appeared through counsel before the Supreme Court when the same came to be disposed of on 06 December 2016. In fact, and as the order passed by the Supreme Court on that occasion would bear out, the plaintiff through its counsel furnished a statement that they would not leave India till the disposal of the review petitions. Despite having been duly apprised of the Book which had been authored by defendant Nos. 4 and 5, the plaintiff, for reasons and motives unknown, chose not to initiate any action. Prima facie the Court is of the opinion that the assertion that he came to know about the contents of the said work only on 08 January 2023 is implausible.
32. That then takes the Court to consider whether a pre-broadcast injunction is liable to be granted in the facts of the present case. As the Division Bench in Khushwant Singh had noticed and observed, the right to publish and disseminate information is liable to be treated as sacrosanct. It had found in the facts of that case that the contents of the Book in respect of which an injunction had come to be granted and the various allegations made therein in respect of a public personality, had been in the public domain and thus clearly disentitled the plaintiff to the grant of any pre-publication injunction. It had further observed that the various publications which had referred to incidents and which had also been alluded to in the offending work clearly indicated that the material in respect of which an objection had been taken already existed and was a matter of public knowledge. It was thus emphasised that while a prior publication may not qualify as a public document what is important to be borne in mind is whether the subject matter itself was in the public domain. On applying the aforesaid test to the facts which obtain here, the Court comes to conclude that the narrative of the authors was available in the public sphere right from 2016. This clearly disentitles the plaintiff from the grant of ad interim reliefs.
33. While dealing with the balancing of public interest and the right of privacy and reputation that may be claimed by an individual it had been observed by the Court that while considering the aforesaid, a claim for damages for defamation would be a remedy more suited than a preventive action for injuncting the publication itself. In Khushwant Singh, the Division Bench had again reiterated the imperative of the plaintiff approaching the Court with due dispatch and on the first available opportunity.
34. The Court notes that while dealing with the issue of a pre- publication injunction, a Division Bench of the Court in Pushp Sharma vs. D.B. Corp. Ltd. And Ors.7 had while reiterating the principles laid down in Khushwant Singh made the following pertinent observations:
"21. The plaintiff's position that the Bonnard (supra) principle cannot apply under all circumstances, especially when the content 2018 SCC OnLine Del 11537 which is to be published or disseminated through electronic media or the internet requires closer scrutiny. New technology undoubtedly poses new challenges. This challenge highlights the necessity of the Court's duty to balance the rights rather than to dilute them. Dr. Shashi Tharoor (supra) dealt with this aspect, in the light of all the relevant case law, including the judgment of the High Court of Australia in Australian Broadcasting Corporation v. O'neill, 2006 HCA 46. Bonnard (supra) principle has been accepted and continued to apply in Canada in Compass Group Canada (Health Services) Ltd. v. Hospital Employees Union, 2004 BCSC 128 ACWS (3d) 578 which states that the alleged defamation should be restrained in exceptional cases, only in the rarest and clearest cases‖ and that the burden upon the plaintiff is to demonstrate that the material complaint was manifestly defamatory and that any jury verdict to the contrary would be considered perverse by the Court of law.‖ It was also emphasized later in Hutchens v. SWCA M.Com, 2011 ONSC 56 that the plaintiff should be able to demonstrate - in order to obtain interlocutory relief - that the defendant when given the chance would be unable to fine it imposes to justify the content of this speech.
22. Undoubtedly, the new age media, especially the electronic media and internet posts greater challenges. That per se ought not to dilute valuable right of free speech which, if one may say so, is the lifeblood of democracy. The salutary and established principle in issues that concerned free speech are that public figures and public institutions have to fulfil a very high threshold to seek injunctive relief in respect of alleged libel or defamation [see R. Rajagopal (supra)]. Also, the judgment in Kartar Singh v. State of Punjab, 1956 SCR 476 underlines that ―those who fill public positions must not be too thin-skinned in respect of references made upon them‖. This court is also of the opinion that the mere frame of the relief - of permanent injunction does not alter the principle. The cause of action which the plaintiffs base their suit upon, is alleged defamation. Therefore, the ordinary principles of injunctive relief, at the ex parte stage, having regard to the nature of the subject matter, i.e. restraint of speech, would be the same. Another interpretation would mean that the plaintiff can at will change the governing principles, by the mere device of claiming a different relief and arguing that if refused, the suit would be defeated. It is not uncommon that in a suit for permanent injunction, the plaintiff is unable to secure temporary injunction. That per se would not disentitle the plaintiff, if otherwise entitled, to any relief. Much depends on what is actually proved.
23. We feel that adding further would not be appropriate except to say that whenever interlocutory or ex parte injunctive relief of the kind which this Court is now concerned with, is sought, the threshold for considering the prima facie strength has to necessarily be of a very high order. The consequence of not following established rules and principles would be that the Courts unwittingly would, through their orders, stifle public debate. The Members of the public and citizens of this country expect news and fair comment as to whether a public institution - including a media house or journal (which cannot claim any exemption from being public institutions as they are the medium through which information is disseminated, and are one of the pillars of democracy) functions properly. In case there are allegations which result in controversies as to the reliability of the news which one or the other disseminates to the public, that too is a matter of public debate. Unless it is demonstrated at the threshold that the offending content is malicious or palpably false, an injunction and that too an ex-parte one, without recording any reasons should not be given. Democracy presupposes robustness in debates, which often turns the spotlight on public figures and public institutions - like media houses, journals and editors. If courts are to routinely stifle debate, what cannot be done by law by the State can be achieved indirectly without satisfying exacting constitutional standards that permit infractions on the valuable right to freedom of speech.‖
35. Pushp Sharma had reiterated the principle of the high threshold which is liable to be met while considering a justification to issue a pre-publication injunction. It was held that unless it is established at the outset that the offending content is malicious and palpably false, an injunction should not be issued. As was noticed by the Court hereinabove that exercise is yet to be undertaken since the content of the web series is yet to be viewed and evaluated in its entirety. The Court notes that in Pushp Sharma the learned Judges had alluded to the Bonnard vs. Perryman8 principle which has been consistently followed by the English Courts. (1891) 2 Ch. 269 36. In Holley vs. Smyth9, the Court of Appeal speaking through Lord Justices Auld and Slade had an occasion to lucidly explain the principles which must govern the grant of pre-publication injunction and held thus:
"The Bonnard v Perryman rule Since the Libel Act 1792 (Fox's Act) the questions ‗libel or no' and whether any libel is justified or privileged have been the responsibility of the jury (before the Act the fact of publication and the truth of innuendoes were questions for the jury). The possibility of judicial intrusion on that responsibility at the interlocutory stage had to await another 60 years. As Lord Coleridge CJ pointed out in Bonnard v Perryman [1891] 2 Ch 269 at 281, [1891-4] All ER Rep 965 at 968 it was not until the enactment of the Common Law Procedure Act in 1854 that common law courts acquired the power to grant injunctive relief. And courts of equity still could not do so because they had no jurisdiction to adjudicate in libel matters. They had to wait until the Supreme Court of Judicature Act 1873 when they became the Chancery Division of the High Court and were thus invested with power to exercise their traditional injunctive role in the field of defamation as well as in other actions of tort.
From the earliest days of the courts' consideration of their power to grant interlocutory relief in libel cases they seem to have been guided by two associated notions, one of high principle and one of principle and practicality. The first is the importance of protecting the individual's right to free speech. The second is an acknowledgement that the judges should not, save in the clearest case, usurp the jury's role by restraining at the interlocutory stage publication of a statement that the jury might later find to be no libel or true or otherwise defensible. Sometimes the second notion is expressed in the form that a judge should not interfere at the interlocutory stage unless the evidence before him so clearly establishes a culpable libel that he is confident that he would have to set aside a contrary verdict of the jury as perverse. It is instructive that Blackstone in his Commentaries on the Laws of England long before any court of common law considered the problem, set the scene in the following ringing tones for the first of those notions, one which was to guide the grant of interim injunctive relief in libel actions in later years, at least against the press:
(1998) 1 All ER 853 In this, and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.' (See 4 Bl Com (1854 edn) 182-183.) The starting point in the jurisprudence is a passage from the judgment of Lord Esher MR in an earlier decision than Bonnard v Perryman, namely in Coulson v Coulson (1887) 3 TLR 846 at 846:
‗... the question of libel or no libel was for the jury. It was for the jury and not for the Court to construe the document and to say whether it was a libel or not. To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel before the jury decided whether it was a libel or not. Therefore, the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable. The Court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there was malice on the part of the defendant. It followed from those three rules that the Court could only on the rarest occasions exercise the jurisdiction.' (See also Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 Ch D 501 at 508 per Jessel MR). The main issue in the case appears to have been whether the threatened publication was libellous, but there was also plainly an issue as to the truth of the allegation. And Lord Esher MR's reference to the issues of justification and privilege as well as libel or no libel show that he intended his words to apply to all matters which were ultimately within the province of the jury. Lindley LJ, in a short concurring judgment, said much the same ((1887) 3 TLR 846 at 847): ‗... the Court was asked to exercise its jurisdiction without being sure that it was in possession of all the facts ... [He] agreed with the rules laid down by the Master of the Rolls, and he was not prepared to say that the jury might not find this was no libel, or that the alleged libel was true.' Lord Coleridge CJ, giving the leading judgment of the full Court of Appeal in Bonnard v Perryman, with which Lord Esher MR and Lindley, Bowen and Lopes LJJ concurred, in favour of discontinuing the interlocutory restraint in that case, repeated and adopted those words of Lord Esher MR in Coulson v Coulson. He held that ‗in all but exceptional cases' (see [1891] 2 Ch 269 at 285, [1891-4] All ER Rep 965 at 969) the courts should not restrain by way of interlocutory relief the publication of a libel which the defence sought to justify save where it was clear that that defence would fail. He based that approach on the particular need in libel cases not to restrict the right of free speech, save in a clear case of an untrue libel, by intervening before final determination of the matter by a jury. This is how he put it:
‗... 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 ... In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable.' (See [1891] 2 Ch 269 at 284, [1891-4] All ER Rep 965 at 968.) The remaining member of the court, Kay LJ, agreed with this general proposition (see [1891] 2 Ch 269 at 285, [1891-4] All ER Rep 965 at 969), but dissented from the court's decision to discontinue the interlocutory injunction on three grounds: first, the alleged libel was expressed in such a way as to suggest it was motivated by spite rather than to protect the interests of the public; second, the defendant had failed to rebut a strong prima facie case on the evidence that the libel was untrue; and third, the balance of convenience and inconvenience favoured the continuance of the temporary restraint since it would cause little harm to the defendant not to publish the alleged libel and much damage to the plaintiff pending the outcome of the trial. The first and third of those grounds do not accord with the majority's reasoning or the courts' application of the Bonnard v Perryman rule ever since.
Monson v Madame Tussauds Ltd [1894] 1 QB 671, [1891-4] All ER Rep 1051 was a case in which there were issues both as to whether the offending material was libellous and whether the defendant had, in any event, consented to its publication. The members of the court (Lord Halsbury and Lopes and Davey LJJ), in refusing interlocutory relief, differed as to the proper approach of the court on the first issue, but all indorsed the Bonnard v Perryman rule that such relief was only appropriate in the exceptional case of a libel to which there was clearly no defence. More recent authorities acknowledge the strength of the rule and continue to articulate the two associated reasons for it to which I have referred, though not always giving the same relative importance to each.
In Fraser v Evans [1969] 1 All ER 8 at 10, [1969] 1 QB 349 at 360-361 Lord Denning MR gave primacy to the right of freedom of speech:
‗The court will not restrain the publication of an article, even though it is defamatory, when the defendant says that he intends to justify it or to make fair comment on a matter of public interest. This has been established for many years since Bonnard v. Perryman ([1891] 2 Ch 269, [1891-4] All ER Rep
965). 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. ... There is no wrong done if it [the alleged libel] 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.' To similar effect, though in another context (namely the issue of lack of malice as part of a defence of justification for the publication of ‗spent' convictions; see the Rehabilitation of Offenders Act 1974, ss 4(1) and 8(5)), is the following passage from the judgment of Griffiths LJ in Herbage v Pressdram Ltd [1984] 2 All ER 769 at 771, [1984] 1 WLR 1160 at 1162 when summarising a number of principles generally applicable to the grant of interim injunctions in defamation actions: ‗... no injunction will be granted if the defendant raises the defence of justification. This is a rule so well established that no elaborate citation of authority is necessary. It can be traced back to the leading case of Bonnard v Perryman ... These principles have evolved because of the value the court has placed on freedom of speech and I think also on the freedom of the press, when balancing it against the reputation of a single individual who, if wrong[ed], can be compensated in damages.' The modern authorities There are a number of comparatively recent authorities in which the courts have expressly declined to restrain, as an exception from the general rule in Bonnard v Perryman, a threatened libel intended or calculated to damage a plaintiff and made as a means of putting pressure on him to compensate the defendant for some claimed wrong.
In Crest Homes Ltd v Ascott [1980] FSR 369, a decision of this court given in 1975 but only reported in 1980, a dissatisfied buyer of a house, having unsuccessfully sought compensation from the builder, threatened to libel it with a view to coercing it to make compensation. The court discharged an interlocutory injunction granted at first instance restraining the libel. Lord Denning MR, with whom Stephenson and Geoffrey Lane LJJ agreed, held that neither the arguably unreasonable mode of the threatened libel nor the pecuniary motive for it was sufficient to take the case outside the general rule established by Bonnard v Perryman. Geoffrey Lane LJ, in his short concurring judgment, emphasised the strength of that general rule. He said (at 399):
‗... the line of authorities is long and weighty that interlocutory injunctions in these cases will not be granted unless the plaintiff shows that the defence of justification will not succeed ...' And he applied the rule notwithstanding his view that the defendant had chosen ‗a vulgar and offensive way to air his grievances' and that the ‗damage to the plaintiffs was likely to be extensive and plainly difficult to prove'. In Bestobell Paints Ltd v Bigg [1975] FSR 421 Oliver J, following the Crest Homes case, declined to restrain a dissatisfied buyer of paint who, with a view to obtaining compensation from the seller, threatened to libel it. He held that the fact that the buyer may have been malicious or that his object was to put pressure on the seller to settle his claim was irrelevant (see at 434-436). Lastly, in Al Fayed v The Observer Ltd (1986) Times, 14 July Mann J declined to treat as an exception to the general rule Mr Al Fayed's contention, assuming its truth, that The Observer had abused its right to freedom of speech by waging a persistent and irresponsible campaign against him as part of a vendetta by a commercial rival for the control of Harrods Ltd long after the public had lost interest in the matter. He held, after reviewing the authorities, that the only exception to the general principle is where the allegation is ‗manifestly untrue' and that it applies whatever the motive or reason for the threatened publication. I should also consider art 10 of the convention. It provides, so far as material:
‗(1) Everyone has the right to freedom of expression. This right shall include freedom ... to receive and impart information ... without interference by public authority ...
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the prevention of ... crime, ... for the protection of the reputation or rights of others ...' In A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545 at 660-661, [1990] 1 AC 109 at 283-284 Lord Goff said that art 10 is consistent with English law and should guide the interpretation of English law when the latter permits. He referred to the restrictions on the right to speak freely stated in the article, including those ‗prescribed by law and ... necessary in a democratic society,' and observed ([1988] 3 All ER 545 at 660, [1990] 1 AC 109 at 283):
‗It is established in the jurisprudence of the European Court of Human Rights that the word ―necessary‖ in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusions.' The criteria of ‗pressing social need' and proportionality, derived from the jurisprudence of the European Court of Human Rights, for any exception to the general right of freedom of speech are of a piece with the rationale of the English courts' rigorous application of the Bonnard v Perryman rule over the last hundred years (see The Observer v UK (1991) 14 EHRR 153 at 191 (para 59)) where it was stated that exceptions ‗must be narrowly interpreted and the necessity for any restrictions must be convincingly established'. See also Thorgeirson v Iceland (1992) 14 EHRR 843 at 865 (para 63)). Hoffmann LJ has recently underlined the importance of that principle in a different context in R v Central Independent Television plc [1994] 3 All ER 641 at 651-652, [1994] Fam 192 at 202-203:
‗The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. And publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well intentioned, think should not be published. It means the right to say things which ―right- thinking people‖ regard as dangerous or irresponsible. This freedom is subject only to the clearly defined exceptions laid down by common law or statute. Furthermore, in order to enable us to meet our international obligations under the ... Convention ... it is necessary that any exceptions should satisfy the tests laid down in art 10(2). They must be ‗necessary in a democratic society' and fall within certain permissible categories ... It cannot be too strongly emphasised that outside the established exceptions (or any new ones which Parliament may enact in accordance with its obligations under the convention) there is no question of balancing freedom of speech against other interests. It is a trump card which always wins.' Even in the absence of authority, I would have been disposed to hold that in a case where a defendant proposes to publish information which he asserts he can justify, the court should not depart from the rule in Bonnard v Perryman merely because it regards his motives in the proposed publication as less high- minded than the pure desire to let the world know the truth. In many, perhaps most, cases the motives for the intended publication may be mixed and inquiry into motive, particularly on an interlocutory application, may be a somewhat speculative exercise. Under the general law the defendant's motives ordinarily afford no sufficient grounds for restraining him from exercising a legal right.
In my opinion, however, the authorities cited by Auld LJ, themselves establish that neither the would-be libeller's motive nor the manner in which he threatens publication nor the potential damage to the plaintiff is normally a basis for making an exception to the rule. I will merely refer briefly to three of these authorities.
In Bonnard v Perryman itself, as Kay LJ pointed out in his dissenting judgment ([1891] 2 Ch 269 at 285), the alleged libel was ‗expressed in coarse and abusive language which would incline any one reading it to the belief that some personal feeling of spite or malignity against the plaintiffs, and not merely a desire to protect the interests of the public was among the actuating motives of the defendant.' In Bestobell Paints Ltd v Bigg [1975] FSR 421 there was no doubt whatever that the defendant's threat was intended to put pressure on the plaintiffs to settle his claim; indeed the plaintiffs' counsel described the threat as ‗blackmail' (though the judgment (at 424) makes it clear that, as in the present case, the accuracy or otherwise of that description was not tested in argument). Oliver J nevertheless declined to grant interlocutory relief. In the course of a comprehensive review of the authorities he said (at 434):
‗It has never, so far as I know, been suggested that, in the ordinary case of libel, it makes any difference to the grant or withholding of interlocutory relief that the defamatory statement is alleged to have been published maliciously.' In Crest Homes Ltd v Ascott [1980] FSR 396 the Court of Appeal clearly did not consider that the fact that the relevant statement was calculated to damage the plaintiffs in their business and was made with a view to putting pressure on them to settle the defendants' claim for compensation took the case out of the rule in Bonnard v Perryman. Lord Denning MR said explicitly (at
398):
‗Next [plaintiffs' counsel] said that it was done so as to get [the plaintiffs] to give compensation. The defendant ought to have brought an action and not acted in that manner. That may be so but nevertheless it is not sufficient to take the case out of the general rule.' I accept that the court may be left with a residual discretion to decline to apply the rule in Bonnard v Perryman in exceptional circumstances. One exception, recognised in that decision itself, is the case where the court is satisfied that the defamatory statement is clearly untrue. In my judgment, however, that is a discretion which must be exercised in accordance with established principles. In my judgment, Ian Kennedy J acted contrary to established principles in regarding the defendant's supposed motives in the present case as constituting exceptional circumstances sufficient to justify his declining to apply the rule.‖
37. Applying the Bonnard principle, the Court notes that the defendants are yet to be called upon to plead truth or justification. The test of justification is ―might‖ and not ―would succeed‖. The Court further bears in mind the pregnant observations as entered in R vs. Central Independent Television10 [a decision which was noticed with approval in Holley] that freedom entails the right to publish even that which government and judges, "however well intentioned, think should not to be published."
38. Accordingly, and for the aforesaid reasons, the prayer for grant of ad interim reliefs stands refused. The application shall consequently stand dismissed at this stage.
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