Prior Restraint in UK Law

Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts. If such criticism exceeds what is lawful there are other remedies available. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms.

Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a 'serious question to be tried' or a 'real prospect' of success at the trial.

This would be a higher threshold than that prescribed by the American Cyanamid case. That would be consistent with the underlying parliamentary intention of emphasising the importance of freedom of expression. It would preclude the court from granting an interim injunction in some circumstances where it is plain injunctive relief should be granted as a temporary measure.

As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial.

The freedom of the press is extolled as one of the great bulwarks of liberty. No restraint should be placed on the press as to what they should publish. It means that the press is to be free from what Blackstone calls "previous restraint" or what our friends in the United States—co-heirs with us of Blackstone—call "prior restraint". The press is not to be restrained in advance from publishing whatever it thinks right to publish.

This survey of the caselaw shows that in an action for defamation a court will not impose a prior restraint on publication unless it is clear that no defence will succeed at the trial. The rule is also partly founded on the pragmatic grounds that until there has been disclosure of documents and cross-examination at the trial a court cannot safely proceed on the basis that what the defendants wish to say is not true.

Article 10 does not entitle ProLife Alliance or anyone else to make free television broadcasts. But that by no means exhausts the application of article 10 in this context. In this context the principle underlying article 10 requires that access to an important public medium of communication should not be refused on discriminatory, arbitrary or unreasonable grounds. Nor should access be granted subject to discriminatory, arbitrary or unreasonable conditions.