In the internet era, permanent injunctions prohibiting defamatory speech are increasingly being sought and ordered following a finding of liability. This may seem unproblematic since a court will have found particular speech to be unlawful – defamatory and likely false. However, there are good reasons to be cautious in permanently enjoining defamatory speech.
This article applies first principles of equitable relief to the modern defamation context. It shows how courts have recognized a de facto test for permanent injunctions in defamation cases based on a misinterpretation of the case law. This doctrinal confusion is enough reason to reconsider the approach to permanent injunctions in defamation cases, but societal changes are also relevant. Communications technology is an obvious change – one that makes injunctions potentially more useful in preventing additional reputational harm. But society’s view of the importance of free speech relative to reputation has changed too.
The article proposes a number of guidelines and principles for permanent injunctive relief in defamation actions. Most relate to ensuring that an injunction is actually necessary to prevent future reputational harm, while some are more innovative and perhaps controversial, such as requiring a likelihood of serious harm if the injunction isn’t granted, and not enjoining comment, as opposed to statements of fact. It is also a plea to lawyers and especially judges not to be too quick to seek or impose injunctions simply because defamatory speech is published online.
Young, Hilary, Permanent Injunctions in Defamation Actions (June 14, 2022).