The High Court signalled yesterday that the courts were likely to favour the granting of orders restraining publication of material on people's private lives and where there is no public interest in its disclosure.
But where it is sought to publish material of significant public interest, even in circumstances where that material was obtained by hidden cameras or similar "surreptitious means", Mr Justice Frank Clarke said he believed the balance would be against granting "prior restraint" injunctions restraining publication.
He made the comments when granting an order restraining RTÉ from further trespass at Leas Cross private nursing home, Swords, Co Dublin. The order, granted to the operators of the home, applies pending the outcome of the full hearing of proceedings against RTÉ arising from the broadcast on May 30th of a Prime Time programme on nursing home care which featured footage secretly filmed by a qualified care worker acting on behalf of Prime Time.
The judge granted the order restraining future trespass after finding there was an arguable case that trespass had occurred and the balance of convenience would involve restraining RTÉ from future trespass pending the outcome of legal proceedings.
The judge said an injunction restraining further trespass would not have an effect equivalent to prior restraint and he did not agree with arguments for RTÉ there was no evidence of any risk of future trespass. It was not inconceivable that RTÉ might revisit the issue and there was nothing inappropriate in that approach.
But there might be a temptation to use similar methods (secret filming) and pending the outcome of proceedings relating to the lawfulness of such methods, he believed he should grant the injunction. He stressed this was not a final ruling.
The judge also stressed that different considerations applied to applications for prior restraint orders restraining publication of material which raised significant public interest issues. He found Prime Time had raised such issues.
He believed the inclusion of the secretly filmed footage was an "understandable" pre-emptive course of action by the programme makers. The fact it was understandable did not mean it was justified. But if the programme's claims were borne out, any breach of privacy would lead to a small or even nominal award of damages.
The judge cautioned that any publisher who used such methods and was then unable to prove the truth of their claims could leave themselves open to an award of substantial damages. Where unlawful tools of news gathering were used, the courts would be careful to ensure the rights of others were properly weighted and the media could not just claim the pursuit of freedom of expression justified unlawful conduct. In this case, RTÉ had shown there were real and weighty public issues involved to justify the refusal of the injunction sought, he said.
Mr Justice Clarke yesterday delivered his full judgment outlining the reasons why he refused last week to grant an order restraining RTÉ from broadcasting the Prime Time programme.
Just 2½ hours before the programme was to be screened on May 30th, the judge had refused an application by John Aherne, Genevieve Aherne and Sovereign Projects Ltd, for the restraining order. The Ahernes are directors of Sovereign which operates the home. He refused a similar but separate application by Denise Cogley, then the home's director of nursing.
During the hearing on May 30th, Mr Justice Clarke viewed the programme which alleged substandard care was given to some patients at the home.
In his judgment, he said that in Ms Cogley's case she had based her injunction claim squarely on a plea that the programme was defamatory of her. The programme could be seen as critical but could also be said to be understanding of her difficulties, he said. To secure an order restraining publication on the basis of alleged defamation, the judge said injunctions would be granted only in the clearest cases of defamation.
The courts had stated that damages were the ordinary and appropriate remedy for defamation while injunctions were not.
