Proportionality of Injunctions: Infringements of Personality Rights for Which Damages Come Too Late

Abstract

This volume asks how far a remedy that stops the circulation of images and expression is permitted. Even for an infringement that after-the-fact damages cannot repair, the object and necessity of a prohibition must be narrowed so as not to restrict freedom of expression excessively. Preventive relief for personality rights and the removal of interference under property rights are not used on the same basis. The path to relief opens where there is a basis for prohibiting present or future infringement and, in the case of prior restraint of expression, the strict exceptional requirements of case law are satisfied, and closes where the exceptional requirements for prior restraint of expression are not satisfied so that a remedy blocking publication or circulation in advance cannot be permitted. The six sections address, in turn, infringements that money remedies too late, the threshold for prior restraint of expression, the link among falsity, public interest, and loss, the coexistence of removal of infringement and loss, the limits of dispositions for restoring reputation, and the scope of prohibition and actual cessation. The strongest counterargument is as follows. A preventive prohibition can become a means of silencing even truthful criticism in the public interest. Freedom of research in general, the choice of urgent protection, and self-correction of public research are not addressed in this volume.