Kohl, Uta --- "Injunctions v Damages (The Age of the Internet) Old Battle of Remedies Revisited" [2000] JlLawInfoSci 12; (2000-2001) 11(2) Journal of Law, Information and Science 160
[∗] Lecturer in Law, University of Wales, Aberystwyth. I would like to thank Prof Eugene Clark, University of Canberra, and Prof Ryszard Piotrowicz, University of Wales, Aberystwyth, for their comments on an earlier draft of this paper. Any errors or omissions remain my responsibility.
[1] ‘Remedies’ is used in this paper to refer to the relief available after a cause of action has been established rather than to the cause of action itself.
[2] For example, in respect of a breach of confidentiality. A recent well-publicised breach of confidentiality was the case concerning Patrick Jephson, the former private secretary of Princess Diana and his book “Shadows of a Princess”, where the UK Royal Family dismissed the possibility of seeking an injunction because of the perceived unlikelihood of obtaining a world-wide ban of a possible online publication. ‘Queen condemns Diana aide’s book’, The Times (UK), 16 September 2000, 1&7.
[3] Although the court relies upon a statutory right to grant injunctions, in fact the same equitable considerations remain applicable.
[4] F. H. Lawson, Remedies of English Law, (1980) 185.
[5] Courts of equity, in exercise of their auxiliary jurisdiction, would ensure that the defendant complied with his legal obligations through the use of their special powers of enforcement. They would also intervene when the exercise of strict legal rights was unfair or inequitable. I.C.F. Spry, The Principles of Equitable Remedies (4th ed, 1990) 27f.
[6] Ibid 374. Note also that other legal remedies have to be inadequate for equitable remedies to be available. Ibid 380f.
[7] Spry, above n 5, 374f.
[8] State Transport Authority v Apex Quarries [1988] VicRp 26; [1988] VR 187, 193; affirming Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349.
[9] But, as noted above, the willingness of courts to grant injunctions still varies strongly depending on the wrong complained of. For example, in respect of nuisances, courts tend to grant injunctions almost as of right. Stephen Tromans, ‘Nuisance – Prevention or Payment?’ (1982) 42 Cambridge Law Journal 87. See also Redland Bricks Ltd v Morris [1970] AC 652, 664.
[10] Spry, above n 5, 4.
[11] Peter Birks, ‘Three Kinds of Objection to Discretionary Remedialism’ (2000) 29 Western Australian Law Review 1, 13.
[12] Spry, above n 5, 6.
[13] [1999] NSWSC 526 (Simpson J, 2 June 1999), available at http://www.austlii.edu.au/cases/nsw/supreme-ct/1999/526.html. For a detailed discussion see Kohl, ‘Defamation on the Internet – A Duty Free Zone After All?’ [2000] SydLawRw 4; (2000) 22 Sydney Law Review 119, at http://www.law.usyd.edu.au/~slr/v22/contents.htm.
[14] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999) para 11.
[15] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999) para 14.
[16] George Whitecross Paton, A Text-book of Jurisprudence (4th ed, 1972) 286.
[17] Canada Metal Co Ltd v Canadian Broadcasting Corporation [1975] 48 DLR 641, 669 (O’Leary J).
[18] Donald Harris, Remedies in Contract and Tort (1988) 189-192. See also Smith New Court Securities Ltd v Scrimgeour Vickers Ltd [1996] UKHL 3; [1997] AC 254, 278f where Lord Steyn noted ‘Counsel… argued that the sole purpose of the law of tort generally, and the tort of deceit in particular, should be to compensate the victims of civil wrongs. That is far too narrow a view. Professor Glanville Williams identified four possible purposes of an action for damages in tort: appeasement, justice, deterrence and compensation.’
[19] John G Fleming, The Law of Torts (9th ed, 1998) 8.
[20] In fact this was yet another reason why the judge refused the injunction in Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999) para 16.
[21] For example, Art 21 of the Amended Proposed EC Directive on Electronic Commerce (Com (1999) 427 final) which provides ‘Member States shall determine the sanctions applicable to infringement of national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are enforced. The sanctions they provide for shall be effective, proportionate and dissuasive…’
[22] [1989] 1 WLR 1268, 1281 (concerning Anton Pillar Orders).
[23] There are, of course, exceptions to the rule. Online radio stations (eg. http://www.internetradio.com) and news sites the content of which are constantly changing are similar to traditional broadcast media. Also, videos and other recording devices allow TV or radio communications to be extended over time and not just over distance.
[24] This distinction based on the permanence or transience of the communication is not unknown in law. In fact, the common law distinction between libel and slander is based on the criterion of permanence of form. Fleming, above n 19, 602f. For an analysis of media and its evolution: Paul Levinson, The Soft Edge - A Natural History and Future of the Information Revolution (1997).
[25] This is less of a concern for example in a common law libel action as the traditional rule is that to be entitled to general damages you need not prove actual injury to reputation as some damage will be presumed. Fleming, above n 19, 658.
[26] Such as the injuries arising out of a breach of confidentiality or out of a breach of an intellectual property right. Use or misuse of the Internet may occasionally also give rise to a physical injury. For example, an online misrepresentation or false statement about a drug or chemical can easily lead to a physical injury.
[27] A. I. Ogus, The Law of Damages (1973) 230. In the context of defamation, damages are said to ‘serve “as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here solatium rather than a monetary recompense for harm measurable in money” … Included are his injured feelings, indignation and the psychological need for satisfaction… None of these elements can be measured on any objective monetary scale.’ Fleming, above n 19, 658.
[28] Spry, above n 5, 375f.
[29] (circa 1879) RED 478 (Can).
[30] Shelfer v City of London Electric Lighting Co [1894] UKLawRpCh 212; [1895] Ch 287, 322-323. Note, this rule has been criticised for unduly limiting the discretion of the court. Spry, above n 5, 624f
[31] [1998] EWCA Civ 1272; [1998] FSR 265; confirmed on appeal BT Plc & Others v One in a Million Ltd [1998] EWCA Civ 1272; [1999] 1 WLR 903.
[32] Australian Securities & Investments Commission v Matthews [1999] FCA 803 (Sackville J, 16 June 1999) para 32. The alternative sanction for contempt of court was preferred in this case: the offender was imprisoned for two months.
[33] American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] AC 396, 408.
[34] Hodgson v Duce (1856) 2 Jur NSW 1014; Aristoc Industries Pty Ltd v R A Wenham (Builders) Pty Ltd [1965] NSWR 581.
[35] In exceptional circumstances this may not be the case: In Wookey v Wookey [1991] 3 WLR 135 Butler-Sloss LJ refused to grant an injunction against a minor as there were no effective means of enforcing it, given his lack of assets or income and given that as a minor he could not be imprisoned.
[36] But note a recent development: Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, adopted by the Special Commission of the Hague Conference on Private International Law on 30 October 1999, available at http://www.hcch.net/e/conventions/draft36e.html.
[37] American Bar Association, Achieving Legal and Business Order In Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet, London Meeting Draft, ABA Global Cyberspace Jurisdiction Project, at http://www.kentlaw.edu/cyberlaw, 92.
[38] Foreign Judgments Act 1991 (Cth).
[39] See also Foreign Judgments Act 1991 (Cth) s.11, which deals with judgments to which the registration procedure under the Act is not applicable and which provides when a foreign court must not be regarded to have had jurisdiction to give the judgment.
[40] Schibsby v Westenholz (1870) LR 6 QB 155; Adams v Cape Industries Plc [1990] 1 Ch 433, 509.
[41] Section 5(6), (7) Foreign Judgments Act 1991 (Cth); See also Australian Law Reform Commission, Legal Risk in International Litigation, ALRC 80, at http://www.austlii.edu.au/au/other/alrc/publications/reports/80/ALRC80.html, para 6.68- 6.74.
[42] Restatement (Second) of Conflict of Laws § 102, comment g, at 310 (1971); David Buzard, ‘US Recognition and Enforcement of Foreign Country Injunctive and Specific Performance Decrees’ (1989) 20, California Western International Law Journal 91. There is a great void of literature dealing with the enforcement of foreign non-monetary court orders. A recent excellent paper is: Catherine Kessedjian, Note on Provisional and Protective Measures in Private International Law and Comparative Law (1999), Preliminary Document No 10, prepared for the Special Commission set up by the Hague Conference on Private International Law in connection with the Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, at http://www.hcchy.net/e/workprog/jdgm.html , 93.
[43] Buzard, ibid.
[44] Lawrence Collins (ed), Dicey and Morris on the Conflict of Laws (13th ed, 2000) vol 1, 476; Re Resort Condomininiums International Inc [1995] 1 Qd 406, holding that a foreign interlocutory injunction is not enforceable at common law.
[45] Buzard, above n 42, 92.
[46] A mandatory injunction requires a positive act while a prohibitory injunction requires the defendant not to act in a particular way.
[47] Ryan v Mutual Tontine Association [1892] UKLawRpCh 163; [1893] 1 Ch 116.
[48] Section 42.6 Supreme Court Rules 1970 (NSW). Section 98 Supreme Court Act 1970 (NSW) provides that a ‘judgment … for the payment of money shall not be enforceable: (a) by process of the Court for attachment of the person or for committal…’
[49] The possibility exists: Ansah v Ansah [1977] Fam 138, 144; Spry, above n 5, 361.
[50] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999) para 11.
[51] Spry, above n 5, at 36ff.
[52] Wookey v Wookey [1991] 3 WLR 135, 140f (Bulter-Sloss LJ). Cf Vincent v Peacock [1973] 1 NSWLR 466, where it was held that it is no ground for refusing an injunction that it will have no practical effect, when the reason for this is the failure of the defendant to obey it, nor is it a ground for refusing an injunction that proceedings by way of attachment will occasion practical difficulties. For a middle view see Spry, above n 5, 41f: ‘as a matter of equitable principle, …the precise probability that the particular order in question will be obeyed will have more or less weight according to the other circumstances and… will be taken by the court in account in exercising its discretion.’
[53] Except in respect of equitable damages, which are like all equitable remedies discretionary.
[54] Only in exceptional circumstances may the court allow service out of jurisdiction. For those circumstances see: S.10.1A Supreme Court Rules 1970 (NSW).
[55] This is the case in many civil law countries. Michael Akehurst, ‘Jurisidiction in International Law’ (1972-1973) British Year Book of International Law 145, 171f.
[56] Spry, above n 5, 30f. He continues: ‘On the other hand, an order made by a court of common law was either of a general declaratory nature… or else was a direction that the plaintiff should recover goods or … damages … from the defendant…the order was directed to ensure that the required position should be brought about.’
[57] If at the time of granting the proposed injunction, no wrong or breach has already occurred, the injunction is a quia timet injunction which requires that the plaintiff must show that there is a strong probability that the mischief will, in fact, occur. Spry, above n 5, 369ff.
[58] Redland Bricks Ltd v Morris [1970] AC 652
[59] [1977] EWCA Civ 6; [1977] QB 966, 981f.
[60] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999), para14.
[61] Ibid.
[62] In another paper I have argued that this exposure is or should in fact not be world-wide but rather limited to a few jurisdictions in which the site is likely to be accessed due to its subject-matter, URL, on and offline advertising, language etc. See Kohl, above n 13.
[63] Warner Brother Pictures Inc v Nelson [1937] 1 KB 209.
[64] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999), para 12.
[65] This obviously does not apply to site which is in its entirety defamatory or in breach of confidentiality. Another alternative is that the defendant makes the site geographically sensitive, only allowing people from certain jurisdictions to access it.
[66] Businesses for which online activity is but one way of trading may easily be discouraged.
[67] Even in the context of the domestic enforcement system in the United Kingdom it has been noted: ‘Some debtors are known to play the system to their advantage, in the knowledge that only the most tenacious or well-funded creditor will be able to make them pay a judgment debt.’ Lord Chancellor’s Department, Key Principles for a New System of Enforcement in the Civil Courts, Enforcement Review 2nd Consultation Paper (1999), at http://www.open.gov.uk/lcd/consult/general/ enforce2.htm, para 3.5.
[68] Folkestone Corpn v Woodward [1872] UKLawRpEq 170; (1872) LR 15 Eq 159
[69] Russel v Watts [1883] UKLawRpCh 283; (1883) 25 Ch D 559
[70] Stollmeyer v Petroleum Development Co Ltd [1918] AC 498
[71] Ibid.
[72] Shelfer v City of London Electric Lighting Co, Meux’s Brewery Co v City of London Electric Lighting Co [1894] UKLawRpCh 212; [1895] Ch 287 [1891] All ER Rep 838, see text accompanying n 33.
[73] Redland Bricks Ltd v Morris [1970] AC 652, 655 ( Lord Upjohn).
[74] Miller v Jackson [1977] QB 103 (nuisance). In the context of nuisance, judges have, however, generally been reluctant to look into the effect of granting an injunction on the defendant and on the public which has been criticised: Tromans, supra n 9, 90. Fleming, supra n 19, 445f.
[75] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999), para 16; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; Church of Scientology of California Incorporated v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 345.
[76] Fleming, above n 19, 662.
[77] With the exception of exemplary damages which, however, have lost much of their legitimacy since the House of Lord decision in Rookes v Barnard [1964] AC 1119.
[78] The Albazero [1977] AC 774, 841 (Lord Diplock).
[79] The case of Miller v Jackson [1977] EWCA Civ 6; [1977] QB 966 is an example of when the imposition of liability may be refused because of the non-availability of a suitable remedy.
[80] Tromans, above n 9, 103.
[81] Ibid.
[82] Simon Deakin, International and Jurisdictional Issues (August 1999) in Literature Survey undertaken by the ESRC Centre for Business Research, University of Cambridge, for the Company Law Review, Ch 8, at http://www.dti.gov.uk/cld/review.htm, 10.
[83] Above n 36.
[84] Peter Nygh, Fausto Pocar, Report of the Special Commission on Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (2000) Preliminary Document No 1, Hague Conference on Private International Law, at http://www.hcchy.net/e/workprog/jdgm.html , 93 [emphasis added].
[85] Ibid 60.