Interim Injunctions for Invasions of Privacy: Challenging the Rule in Bonnard v. Perryman?

Abstract

Privacy and defamation are related interests, but they differ as far as the availability of injunctive relief is concerned. UK courts grant interim junctions against alleged invasions of privacy when the claimant is ‘more likely than not’ to succeed at trial. Under the long-standing rule in Bonnard v Perryman, defamation claimants will only be granted interim relief in the clearest of cases, where the defendant is bound to fail with any defences. The tensions between both tests needs to be resolved in the difficult cases in which a claimant could proceed both under privacy and defamation.

Until now, it has been unclear how cases that straddle both causes of action should be dealt with. Some courts have expressed the view that it may amount to an abuse of process to circumvent the rule against prior restraint by relying on privacy where the ‘nub’ of the complaint is about reputation. This chapter takes issue with this approach. After examining the conflicting views, it concludes that it is likely to be incompatible with the European Convention on Human Rights to apply the current inflexible rule to threatened publications that affect the claimant’s private life, notwithstanding the fact that they may be defamatory. After evaluating the conflicting arguments, this chapter concludes that principle, policy and pragmatism point to allowing the claimant to choose the cause of action to rely on and for the court to respect this choice in proceedings for interim relief.

Keywords: privacy; right to privacy; remedies; injunction; European Convention on Human Rights; defamation

JEL Classification: K10, K13