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Is it possible to obtain defamation injunctions prior to publication
It is possible to obtain a defamation injunction prior to publication, but the court will very rarely grant a defamation injunction prior to publication.
A defamation injunction, in most cases, will be an effective way to prevent defamation from being disseminated on the internet. However, taking a case to court to obtain a defamation injunction is likely to come with some risks. In most cases where we are instructed to remove defamation from the internet, we do so successfully and without putting our clients through expensive litigation. Often, we are able to facilitate the removal of defamatory web pages through an affordable, yet persuasive cease and desist letter or by negotiations.
Even if the offending website is located outside the jurisdiction of the English Courts, a well drafted cease and desist letter might still be sufficient to have the defamatory content removed. However, more and more internet companies, including Google and Facebook may ask for a court order before they agree to remove defamation from their websites, unless we can point their legal departments to specific breaches of their own terms and conditions of use.
In 99% of the cases, Google will remove defamatory webpages from its blogging platform Blogger and from its search engines upon receipt of a copy of a claim form. This often meets our client's objectives, which means that there is no longer a need to pursue the matter further and at additional costs.
If the court is reluctant to grant defamation injunctions prior to the defamatory publication, you might still be able to prevent the publication if the material which is proposed to be published is of a private nature. Injunctions to prevent the misuse of private information might be granted even if the information subject to the proposed publication is also defamatory, in addition to being private.
You may also be able to obtain an injunction under harassment law, if the proposed publication is part of a series of publications which constitute harassment. However, if the gist of the publication is defamation, then the court is likely to be reluctant to grant an injunction prior to publication.
Often, if the poster of the defamation is anonymous, you will be likely to obtain a defamation injunction fairly quickly. You can do this by filing a claim against the anonymous poster who, in turn, is unlikely to file a defence against the defamation claim. You will then be able to move swiftly to an application for a default judgment, which will enable the court to grant defamation injunction in your favour. You may use this injunction to facilitate the removal of defamatory posts and web pages form the internet by serving the injunction on website operators and on search engine providers.
Prior to making your default judgement application, the court will expect you to, at least, make some effort to try and track down the anonymous poster of the defamation. To do this, you will need to make an application for a Norwich Pharmacal Order (NPO) which is a type of third party disclosure order, effectively requiring the website operator to disclose to you information pertaining to the user of their service, who posted the defamatory posts about you. If, after obtaining the NPO, you were still unable to identify a real person behind the defamatory posts, you will be able to make an application for a default judgment and obtain your defamation injunction in turn.
In most cases, you will still be able to facilitate the removal of defamation from the internet, even without having to obtain a full defamation injunction. The case of Rodney provides a good example for this. Rodney was a director of a small printing company. The company pride itself with excellent customer services and superb after care and it was very rare for customers to make any complaints about the quality of the good or the service that Rodney’s company supplied. Rodney was surprised to one day discover an anonymous blog post on Blogger, which referred to him and to his company as 'fraud' and 'scam'.
Rodney believed that the blog post was created by a competitor but he was unable to prove this. Rodney wrote to Google several times and asked them to remove the defamatory blog post, but he never received a reply. He then contacted a number of defamation solicitors who advised him that bringing a court action to order Google to remove the blog post will cost him between £30,000 - £50,000 for a start. Rodney's company was turning just over £500,000 per annum so he now had to make a tough choice whether to invest the entire marketing budget in a court action, which might or might not be successful or whether to try and manipulate the search engines so that the defamatory blog might be pushed down the search results.
By working with Rodney, we helped him to identify a practical yet effective solution to his problem. Instead of embarking on a full legal action for defamation, we advised him to apply for a limited court order which told Google to provide information about the identity of the blogger (order known as Norwich Pharmacal Order, or NPO) at the approximate cost of £3,000. Upon receipt of a copy of the court application and before the NPO was even granted, Google immediately removed the blog post. Rodney's goal of removing the defamatory blog was achieved and at the same time, his action sent a clear message to his competitor that he was being serious about pursuing the identity of those who defame his company. Solving this case successfully ended up costing him a sum which was affordable to him and which was certainly worth his while financially.