Discovering that someone is planning to or is about to publish something false and damaging towards you is an alarming and distressing experience. Most people may immediately think of applying for an injunction in the courts to stop the publication; however, there are more considerations than may be appreciated.
Injunctions: Difficulties
The threshold for pre-publication injunctions is extremely high, and English courts are reluctant to prevent publications of materials before it actually occurs. The rule in Bonnard v Perryman [1891] established that the courts will not grant an injunction to stop defamatory publications if the defendant shows they intend to use the defence of truth. This means that in situations where a story seems plainly false and misleading, the court is largely unable to act if the publisher indicates their intention to justify the publication.
In addition, before granting an injunction that restricts freedom of expression, the court must be satisfied that the claimant is more likely than not to succeed at trial. Injunctive relief is therefore generally reserved for clear cases of defamation.
Furthermore, injunction applications are extremely time-consuming and costly as they are urgent legal applications and require a solicitor and barrister to immediately draft witness statements, claim forms and draft orders.
Formal Letter Before Claim
One option is to instruct a solicitor to write a detailed and reasonable letter before claim to the publisher or individual, specifying the defamatory nature of the statements or publication and how it will cause serious harm to your reputation. It is also common practice to include a list or letter of undertaking for the individual or publisher to sign and promise that the story will not be published or will be corrected to remove the defamatory content.
Engage the Regulators
The Independent Press Standards Organisation (IPSO) handles and reviews complaints about regulated press publications and provides a channel for communication between the complainant and the publisher for discussions of rectification, removal, or takedown of the story.
Preserve all Evidence
Even if the story is published after taking proactive measures, it strengthens the claimant’s position in subsequent proceedings and demonstrates they put in extensive effort and took prompt action to prevent publication. The following information should be preserved through screenshots and links:
- Correspondence with the individual or publisher, such as your efforts in reaching out and requesting correction or removal and their lack of response/refusal; and
- Screenshots, video recordings and/or links of the published content with timestamps
Defamation cases can be highly sensitive and complex; in situations where you feel helpless it may be best to consult professional legal advice for next steps and the best approach.
If you would like advice or assistance about stopping a defamatory story before it is published, call Nath Solicitors and book your consultation today.