Seeking an injunction to restrain publication: when is it possible and how does it work?

An article is about to appear that will wreck your reputation. Or a television programme is preparing a broadcast containing accusations that are not correct. You want to stop it, but is that legally possible?

An injunction to restrain publication is the most far-reaching remedy media law has. It stops a publication before it appears. That is precisely why the threshold is high. The court does not want to interfere lightly with press freedom, and rightly so. But there are situations in which it can be done, and then every minute counts.

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What exactly is an injunction to restrain publication?

It is a court order by which the court prohibits a journalist, editorial team or publisher from making particular information public. In concrete terms: the article may not appear, the broadcast does not go out, the online content stays offline. Because of freedom of expression (Article 10 ECHR), courts are highly reluctant to grant such an order in advance.

Even so, an injunction to restrain publication is regularly claimed and sometimes granted. In practice we find that the threat of interim injunction proceedings is sometimes enough in itself to move an editorial team to amend or postpone.

When does the court grant an injunction to stop publication?

The court assesses such a claim against a number of factors. They all count, and the weight given to each differs from case to case.

The accusations must be demonstrably incorrect. If you can show with documents that the facts in the article are wrong, that improves your prospects considerably. The court expects concrete evidence, not merely a denial on your part.

The nature of the harm also counts. Rectification after the event must be insufficient to repair the damage. That applies, for instance, where the publication directly threatens your job, your business or your personal safety. Or where the accusations are of such a kind that, once they are out, they cannot be taken back.

Urgency is a strict condition. Once the publication is out, an injunction to stop publication serves no purpose. The route then shifts to demanding a rectification or claiming removal.

Whether the publication exposes a serious matter of public concern also counts. In that case the court will be less inclined to grant the injunction, even where the accusations are damaging to you.

The right of reply counts too. If the journalist has given you no opportunity to respond and the accusations are serious, that can work in your favour.

How do you apply for an injunction to stop publication?

Step 1: Engage a lawyer straight away

Time is the critical factor. As soon as you hear that a damaging publication is coming, you must act. A lawyer assesses whether there are sufficient grounds for an injunction to restrain publication and prepares the documents. In our practice we can, where it is urgent, have a writ of summons served the same day.

Step 2: Send a cease-and-desist letter

In many cases we first send a cease-and-desist letter to the editorial team or publisher. In it we require that the publication does not go ahead and indicate that we will otherwise start interim injunction proceedings. Sometimes this letter is enough on its own. The editors amend the article, postpone publication or drop it. Do the editors fail to respond or refuse to cooperate? Then we move to step 3.

Step 3: Start interim injunction proceedings

In interim injunction proceedings you seek an order restraining publication from the voorzieningenrechter, the judge of the district court who sits in urgent cases and rules on interim measures. The procedure moves quickly. Where matters are extremely urgent, for example where a broadcast is scheduled for that same evening, the court can give judgment within a matter of hours. Normally the hearing follows within a few days to two weeks after the writ of summons.

At the hearing you explain why the publication would be unlawful and why rectification after the event is not enough. The court also hears the other party. Judgment then follows, usually within two weeks, but faster where it is urgent.

If the court grants the injunction to restrain publication, it can back the order with a penalty payment: a fixed sum (in Dutch a dwangsom) that the other party forfeits for every day, or every occasion, on which it breaches the order.

What if the publication has already appeared?

Then you are too late for an injunction to stop publication. But you are not without options. Demanding a rectification is one, as is claiming that the publication be removed. Damages for the loss suffered are also open to you. In interim injunction proceedings the court can also prohibit further dissemination, so that the item is not shared or repeated again. All the legal options are set out on our page about unlawful publication.

What does an injunction to stop publication cost?

That differs from case to case. The court registry fee (in Dutch the griffierecht), the costs of the writ and legal fees are part of the picture in any event. In practice, interim injunction proceedings of this kind come to a total somewhere between €5,000 and €20,000 excluding VAT. How complicated the case is and how much preparation it needs determines where exactly you end up.

Suppose you win. The court then orders the other party to pay part of your legal costs. That rarely covers everything, but it makes a substantial difference. You can read more about this on our page about interim injunction proceedings over an unlawful publication.