Frequently Asked Questions

• Author: David A. Potts
• Profession: Barrister, Bar of Ontario
• Pages: 11-22

11

 : Frequently Asked Questions

A. CAN I OBTAIN AN INTERLOCU TORY INJUNCTION TO

REMOVE A DEFAMATORY PUBLICATION FROM THE

INTERNET?

Answer: Interlocutory injunctions are not readily granted in l ibel actions,

including cyberlibel.

. e test for the issuance of an interlocutory i njunction is much more

stringent in cyberlibel and libel actions than in other proceedings because

there is a concern for the restriction of freedom of speech prior to trial.

See • Canadian Human Rights Commis sion v. Canadian Liberty Net,

[]  S.C.R. 

Rapp v. McClelland & Stewart Ltd. • (),  O.R. (d)  (H.C.J.)

Canada Metal Ltd. v. C.B.C. • (),  D.L.R. (d)  (Ont. Div. Ct.)

. e test for granting interlocutory injunctions in libel proceedings in Can-

ada was art iculated by Grith J. of the Ontario Cour t of Justice in Rapp v.

McClelland & Stewart Ltd. (),  O.R. (d)  at – (H.C.J.):

In my view, however, the test for determining whether the interim injunc-

tion should issue involves not only a consideration of the likel ihood of the

defendant proving justication at trial, but also whether a jury w ill inevit-

ably come to the conclusion that the words however false are also defamatory

of the plainti.

e guiding principle then is, that the injunction should only issue where

the words complained of a re so manifestly defamatory that any jury verdict

to t he contrary would be considered per verse by the Court of Appea l. To

put it another way where it is i mpossible to say that a reasonable jury must

inevitably nd the words defa matory the injunction should not issue.