Injunctions in Cyberlibel

• Author: David A. Potts
• Profession: Barrister, Bar of Ontario
• Pages: 200-220

200

 : Injunctions in Cyberlibel

A. RELUCTANCE OF COURTS TO GRANT INTER LOCUTORY

INJUNCTIONS IN LIBEL ACTIONS

e courts a re generally reluctant to grant interlocutory injunctions i n libel

actions unless t he statement is clearly defamatory and there is no defence of

truth or privilege.

Rapp v. McLelland & Stewart (),  O.R. (d)  at para. :

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

words complained of are so ma nifestly defamatory that any jur y verdict to

the contrary would be c onsidered perverse by the Court of Appeal. To put it

another way, where it is impossible to say that a reasonably jury must inevit-

ably nd the words defamatory, the injunct ion should not issue.

See also Cana da Metal Co. Ltd. v. CBC (),  O.R. (d) , a'd  O.R . (d) ;

Meier v. CBC (),  C.P.C. ; Doe v. CBC (),  B.C.L.R. (d) ; Can-

ada (Human Rights Commi ssion) v. Canadian Liberty Net, []  S.C.R. ;

Campbell v. Cartmell , [] O.J. No. , where an injunction was gra nted for an

Internet libel; Bonna rd v. Perryman []  Ch. 

B. GENER AL PRINCIPLES

e principles of interlocutory injunctive rel ief for defamation cases were

stated very clea rly in paras. – of Murray J.’s reasons in Beidas v. Pichler,

 CanLII  (ON S.C.D.C.). is case involved the publication of state-

ments on the Internet.

First, it is appropriate to consider t he general principles applicable in a case

such as the one before thi s Court. In Rapp et al. v. McClelland & Stewar t

Chapter : Injunctions in Cyberlibel  201

Ltd. et al. (),  O.R. (d) , Griths J. described general ly the require-

ments for an injunction in a case of defa mation at p. :

In t his jurisd iction, unless both pa rties are prepared to waive t he

requirement, a libel action must be tried by a jury and while the

presiding trial judge has the duty to determine whether in law the

words complained of are capable of being defamatory of the plainti

it is the exclusive function of the jury to de termine w hether t hey

are, under all the ci rcumstances, in fact defamatory. e words to

be defam atory must be false and t he jury must be satised that the

words in their natural or innuendo meaning tend to lower the plain-

ti in the estimate of right-thinking members of society generally or

cause her t o be shunned or avoided or exposed to h atred, contempt

or ridicu le.

As the learned author Gatley on Libel and Slander, th ed . (),

observes at pp. –:

It will be seen that it is not possible to say that any part icular

imputation is defam atory, regardless of the circumstances of

its publicat ion. Whether or not it is so will vary w ith time,

place and the state of public opinion. In any case, whether or

not any imputation is defamatory is not a matter of law, but a

matter of fact for the jury, and no other jur y will be bound to

reach the same decision. It is similarly a matter of fact wheth-

er any words convey the def amatory imputation alleged, a nd

this may depend to a great extent on the circumstances and

context of a particu lar publication.

. . .

In Rosemond Es tates Inc. et al. v. Lev y et al.,  O.R. ( d) , [] O.J. No.

 , Spence J. stated: “that t he court should be particularly cautious about

granting an injunct ion where t he issue c oncerns defamation is clear from

the decision in Rapp v. McClelland & Stewar t Ltd. reex, (),  O.R. (d)

,  D.L.R. (d)  (S.C.) per Griths J. at p.  O.R.

In his treatise Injunct ions and Specic Performance (nd ed.  (loose-

leaf)), Robert Sharpe s ays the following, at paras. .–. (pp. .–.):

ere is a signicant public interest in the free and uncensored circu-

lation of informat ion and the importa nt principle of freedom of t he

press to be safeguarded .

. . .