Injunctions and takedown orders: stopping publication before and after trial

Most people who discover a defamatory post or article want it gone before they want compensation. The law does not make that easy. A court order restraining publication is a prior restraint on speech, and Australian courts have treated that as a serious step for well over a century. Interlocutory injunctions in defamation are therefore rare, permanent injunctions follow only a finding of liability, and much of the practical work of removal happens outside the courtroom. This article explains the test, what changes after judgment, the newer power to make orders against platforms, and the non litigious routes.

Why pre trial injunctions are exceptional

The governing authority is Australian Broadcasting Corporation v O’Neill. The ABC proposed to broadcast a documentary suggesting that a convicted murderer was responsible for the disappearance of the Beaumont children. The Supreme Court of Tasmania restrained the broadcast and the Full Court upheld the injunction. The High Court, by majority, set it aside.¹

Gleeson CJ and Crennan J adopted the reasoning of Lord Coleridge CJ in Bonnard v Perryman, the 1891 English decision that has shaped this area ever since. Four considerations explain why defamation requires exceptional caution before trial: the public interest in free speech; that until a defence of justification is resolved it is not known whether publication would invade any legal right; that justification is ordinarily a jury question, not one for a judge sitting alone on an interlocutory application; and that the plaintiff’s general character may mean that even a successful plaintiff recovers only nominal damages.²

Their Honours explained the “main reason” for the exceptional caution: there is a difference between imposing consequences after an abuse of free speech and interfering with speech in advance. When a court is asked to intervene before publication, “wider considerations are involved”.³ At the same time they rejected any rigid rule, observing that “inflexibility is not the hallmark of a jurisdiction that is to be exercised on the basis of justice and convenience”. The often quoted statement of Walsh J in Stocker v McElhinney (No 2), that the power is “exercised with great caution, and only in very clear cases” and that an injunction will be refused if there is “any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth”, was endorsed as a useful reminder of principle rather than a formula.⁴

Gummow and Hayne JJ restated the general Australian test from Beecham Group Ltd v Bristol Laboratories Pty Ltd: the court asks first whether the plaintiff has made out a prima facie case, meaning a sufficient likelihood of success to justify preserving the status quo, and second whether the balance of convenience favours relief. How strong the probability must be “depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks”.⁵ In defamation, the nature of the right asserted brings with it the courts’ long standing reluctance to impose prior restraint and their respect for the role of the jury.⁶

The practical effect is illustrated by Russell v S3@Raw Pty Ltd, where Meagher J refused orders requiring removal of Instagram posts and restraining further publication. The applicant had shown a serious question to be tried, and several factors in the balance of convenience favoured her, including a respondent company of no substance and a respondent living overseas. Relief was still refused: the principal post had been taken down, the remaining material was “merely arguably defamatory”, and “the importance of free speech must be recognised”. Her Honour noted the outcome might have differed had the publications been repeated so as to assume “the flavour of a vendetta”.⁷

What an applicant must show

A person seeking an interlocutory injunction in defamation must generally establish each of the following.

First, a sufficiently strong case. This means more than an arguable case that the words are defamatory. If there is real room for debate about whether the matter is defamatory, or a real prospect that a defence of justification, honest opinion, privilege or public interest will succeed, the application will ordinarily fail.⁴ A defendant who files evidence showing an intention to justify, and a credible basis for it, will usually defeat the application at this stage.

Second, that damages would not be an adequate remedy. Damages are the usual remedy, and the risk of only nominal damages counts against restraint.² Inadequacy tends to be shown by ongoing campaigns, publishers who cannot pay, or business harm accruing daily.

Third, that the balance of convenience favours the order, weighing the harm to the applicant if the material remains available against the harm to the respondent and to the public interest in free communication if it is suppressed before trial.⁵

Fourth, an undertaking as to damages. Courts throughout Australia ordinarily require this before granting an interlocutory injunction. In Queensland, for example, the court must not grant one without the usual undertaking as to damages unless there is good reason. The undertaking is a promise to pay any person affected by the order such damages as the court decides should be paid.⁸ The court may also require security for it.⁹ An applicant of limited means should expect this to be raised.

None of this prevents an urgent application in a proper case, and courts do act quickly where a publication is plainly indefensible and the harm is immediate. But courts regard a pre trial injunction as unusual relief.

Permanent injunctions after a finding of liability

The position changes once a court has found that the matter was defamatory and that no defence succeeded. The concerns about prior restraint and the unresolved jury question fall away, but a permanent injunction is still not automatic. In Newman v Whittington, Chen J explained that it is ordinarily necessary to show an additional factor such as an apprehension that the defendant may, “by reason of irrationality, defiance, disrespect of the Court’s judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so”.¹⁰

That additional factor is common in online disputes between individuals. In Newman the defendant had kept posting about the plaintiff during the proceeding and had sent a hostile email to her counsel; his Honour was “well-satisfied” he would continue unless restrained.¹¹ His Honour also granted a mandatory injunction requiring the defendant to remove the twelve publications, and any other material conveying the same imputations, from the WordPress, Facebook and X pages he controlled within 21 days, reasoning that it would be unrealistic to expect the posts to be edited to remove the defamatory meaning.¹² In Wagner v Harbour Radio Pty Ltd, Flanagan J granted permanent injunctions against the broadcaster Alan Jones and the radio stations because Mr Jones, in giving evidence, chose to continue to attack the plaintiffs and to repeat many of the imputations, even though there was no evidence of publication after the proceeding began.¹³

Permanent injunctions are typically framed to restrain publication of the matters complained of and of any other matter conveying the imputations found to have been carried, or imputations not differing in substance from them.¹² Breach of an injunction is a contempt of court in every jurisdiction. In Queensland, for example, the rules provide that an order requiring a person to abstain from an act may be enforced by punishment for contempt, which gives the order real force against a defendant in the jurisdiction.²⁵ For a defendant, the lesson is that conduct during the litigation, including continued publication and insistence in evidence that the allegations are true, is the principal driver of injunctive relief after judgment.

Orders against platforms under s 39A

A court order binds only the parties, so a plaintiff who obtained an injunction against an individual traditionally still had to persuade the platform to remove the material. The Stage 2 reforms introduced a power directed at that gap. Section 39A applies to defamation proceedings for the publication of digital matter once the plaintiff has obtained judgment against the defendant, or the court has granted a temporary or final injunction or other order preventing the defendant from continuing to publish or republishing the matter.¹⁴

The court may then order a digital intermediary that is not a party, such as a social media platform, forum host or search engine, to take access prevention steps or other steps the court considers necessary to prevent or limit continued publication or republication, or to give effect to the judgment or injunction. The order may apply to all users of the online service or only to specified users.¹⁵ The intermediary must be given an opportunity to be heard, although the court may make a temporary order without one where expedition requires it, pending a later hearing.¹⁶ An order can be made even though the intermediary is not, or may not be, liable for defamation itself, including because it has a defence, and the section does not limit the court’s other powers.¹⁷

The section is available only where enacted. New South Wales and the ACT commenced the Stage 2 provisions on 1 July 2024, Victoria on 11 September 2024, Tasmania on 16 June 2025 and the Northern Territory on 11 August 2025. Queensland’s s 39A commenced on 26 December 2025, and the Queensland transitional provisions allow orders to be made after that date regardless of whether the publication or the proceeding predates the commencement.¹⁸ The ACT equivalent is s 139JA of the Civil Law (Wrongs) Act 2002 and the NT equivalent is s 36A of the Defamation Act 2006.¹⁹ South Australia has enacted only part of the Stage 2 package and Western Australia none of it, so in those jurisdictions a plaintiff must rely on the court’s general powers and the platform’s own processes.

Two cautions apply. Because s 39A is engaged only after judgment or an injunction, it is not an independent route to early removal; a plaintiff must still clear the hurdles described above. And the power is new, so there is little reported guidance on how courts will frame orders against intermediaries, particularly those based overseas.

Practical takedown routes

For most online complaints the fastest remedy does not involve a court.

Platform complaint processes. The major social media platforms and review sites have reporting tools and legal request channels. Removal through that route costs nothing and can be quick. Platforms generally apply their own community standards rather than Australian defamation law, so a report framed around harassment, impersonation or false information is sometimes more effective. Google provides a process for requesting removal from search results on legal grounds, and a judgment or court order finding the material defamatory strengthens such a request.

The eSafety Commissioner. Serious online abuse may fall within the adult cyber abuse scheme in the Online Safety Act 2021 (Cth). Material is adult cyber abuse material where an ordinary reasonable person would conclude that it was likely intended to have an effect of causing serious harm to a particular Australian adult and would regard it as menacing, harassing or offensive in all the circumstances.²⁰ An adult may complain to the Commissioner and, where the material was reported to the service and not removed within 48 hours, the Commissioner may issue a removal notice to the provider.²¹ This is a different test from defamation. Much defamatory material will not meet the threshold of intended serious harm, but where defamation and adult cyber abuse overlap the scheme can achieve removal without litigation.

Concerns notices and offers to make amends. A concerns notice that correctly identifies the imputations is often enough to prompt voluntary removal. The offer to make amends regime also contemplates it: for digital matter an offer may include access prevention steps, and a reasonable offer that is refused gives the publisher a defence.²²

Removal as a settlement term. Most defamation disputes resolve by agreement, and removal is almost always a term. A well drafted settlement specifies what is to be removed and from where, a time for compliance, an obligation not to republish the same or similar allegations, and the consequences of breach. Where a plaintiff’s priority is removal rather than money, agreeing to that term early, for a modest payment or none, often serves both sides. A publisher who removes material promptly after complaint also improves its position on damages.

Harassment, intimidation and protective orders

Some online campaigns are less about reputation than intimidation. Where that is so, protective orders may be more apt than defamation proceedings.

In New South Wales a court may make an apprehended personal violence order where a person has reasonable grounds to fear, and in fact fears, conduct by another that intimidates or stalks them. Intimidation includes conduct, including cyberbullying, amounting to harassment or molestation, and a note to the provision gives bullying by publication of offensive material over social media as an example of cyberbullying.²³ In Queensland the Peace and Good Behaviour Act 1982 is narrower. A complaint may be made where a person has threatened to assault or injure the complainant or a person in their care, or to damage their property, and the complainant is in fear of them, or where intentional conduct has caused the complainant to fear damage to property; the justice must also consider the fear reasonable. The grounds are confined to threats of that kind, so defamatory statements alone will not found a complaint.²⁴

These orders restrain future conduct toward the person protected. They do not require removal of past publications, do not compensate for damage to reputation, and carry criminal consequences for breach rather than civil remedies. A person facing a sustained online campaign may need to consider both avenues. A respondent to a protective order application should understand that it is decided on different principles from a defamation claim.

Getting advice

Whether and when to seek an injunction depends on a judgement about the strength of the case, the likely defences, the harm actually accruing and the alternatives available. Publishers served with an application need prompt advice on the evidence that will defeat it; complainants need a realistic view of whether a court order or a platform complaint is the faster route to removal. Often the answer is a combination, with court relief reserved for the publisher who will not stop.