SOME PITFALLS AND MINEFIELDS
You will quickly find that many people who contact you about internet defamation simply want the statements removed and/or stopped. They don’t care about damages or apologies. All they can see is their reputation which they have worked for a lifetime to establish being destroy by a few clicks of a mouse. Their fury and sense of impotence is palpable. It is a sickening and heart-rending experience. But you must be disciplined and avoid transforming a problem into a disaster.
This article will examine the following issues:
- How is the law relating to defamation injunctions different from the law of injunctions generally;
- Problems with ex parte injunctions;
- Personal observations on potential problems with interlocutory injunctions for cyberlibel; and
- When should you proceed with an application for an interlocutory injunction.
1. HOW IS THE LAW RELATING TO DEFAMATION INJUNCTIONS DIFFERENT?
The courts are generally reluctant to grant interlocutory injunctions in libel actions unless the statement is clearly defamatory and there is no defence of truth or privilege.
In Rapp v. McLelland & Stewart, 1981 CanLII 1696 (ON SC), the court stated as follows:
The guiding principle then is, that the injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way, where it is impossible to say that a reasonably jury must inevitably find the words defamatory, the injunction should not issue.
See also Canada Metal Co. Ltd. v. CBC (1974), 3 O.R. (2d) 1, aff'd 7 O.R. (2d) 261; Meier v. CBC (1981), 19 C.P.C. 315; Doe v. CBC (1994), 86 B.C.L.R. (2d) 202; Canada (Human Rights Commission) v. Canadian Liberty Net,  1 S.C.R. 626; Campbell v. Cartmell,  O.J. No. 35, where an injunction was granted for an internet libel; Bonnard v. Perryman  2 Ch. 269.
In Rosemond Estates Inc. et al. v. Levy et al., 65 O.R. (3d) 79,  O.J. No. 1748, Spence J. stated:
[T]he court should be particularly cautious about granting an injunction where the issue concerns defamation is clear from the decision in Rapp v. McClelland & Stewart Ltd. reflex, (1981), 34 O.R. (2d) 452, 128 D.L.R. (3d) 650 (S.C.) per Griffiths J. at p. 455 O.R.
Additionally, in his treatise Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), Robert Sharpe says the following, at paras. 5.40–5.70 (pp. 5.2–5.4):
There is a significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded. […] The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e., prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify […] it seems clear that the rule is unaffected by the American Cyanamid case and that the balance of convenience is not a factor. (Emphasis added)