The recent Federal Court of Australia decision in Greenwich v Latham (No 2) [2025] FCA 131 provides valuable insights into when courts will (and won't) grant permanent injunctions to prevent republication of defamatory content. The case involved Alexander Greenwich, a politician, who had previously succeeded in a defamation action against Mark William Latham regarding what the court called the "Primary Tweet."
In the earlier judgment (Greenwich v Latham [2024] FCA 1050), the court found that Latham had defamed Greenwich through a tweet that carried the imputation that Greenwich "engages in disgusting sexual activities." Latham removed the tweet after public outcry but subsequently made various comments on social media and in a radio interview expressing his views on the matter.
After being awarded damages, Greenwich sought permanent injunctive relief to prevent Latham from republishing the defamatory content or similar imputations. In a considered judgment, Justice O'Callaghan dismissed this application, providing useful guidance on the principles governing permanent injunctions in defamation cases.
The Exceptional Nature of Permanent Injunctions in Defamation
Contrary to common belief, permanent injunctions restraining republication of defamatory content are not granted as a matter of course in Australia. As Justice O'Callaghan noted, "until recently such orders were rarely sought" (Greenwich v Latham (No 2) [2025] FCA 131 at [4]).
The position appears somewhat different in England, where permanent injunctions are described as "the natural remedy that flows from the Court's decision" (citing Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB) at [239] and Blake v Fox [2024] EWHC 956 (KB) at [11]).
When Will Permanent Injunctions Be Granted?
The primary condition for granting a permanent injunction is the existence of a real risk of republication. Justice O'Callaghan cited the longstanding principle from Proctor v Bayley (1889) 42 Ch D 390 at 401: "an injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction."
In Australian defamation law, injunctions are typically issued only when "some additional factor is evident – usually, an apprehension that the respondent 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" (Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 at 130 [15]).
Risk Assessment Is Multi-Faceted
As explained in Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 at [29], courts must consider:
The extent of the risk of republication
The seriousness of the defamation
The hardship the plaintiff would suffer if the defamation was repeated
The burden on the plaintiff if required to commence further proceedings
The court must also consider whether granting a permanent injunction would avoid a multiplicity of proceedings.
The Greenwich v Latham Decision
In Greenwich v Latham (No 2), Justice O'Callaghan was not satisfied that there was a real or appreciable risk that Latham would republish the defamatory imputation. Despite Latham's defiant public statements after the initial publication, the court noted that "the applicant has not pointed to any occurrence after May 2023, or after judgment was handed down on 11 September 2024, which might suggest a threat of republication of the defamatory material" (at [19]).
The court rejected the argument that Latham's constitutional right to freedom of communication about political matters was relevant, finding that the content of the Primary Tweet was "personal and not germane to any matter of politics" (at [22]).
Damages as a Remedy in Defamation
An interesting aspect of the judgment is Justice O'Callaghan's discussion of whether damages would be an "adequate remedy" if republication occurred. The court found this question somewhat inapposite in defamation cases, citing the observations of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 that "money and reputation are not commensurables" and damages in defamation serve as "a solatium rather than a monetary recompense for harm measurable in money."
As Hayne J noted in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 349 [66], "damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable."
However, the adequacy of damages may be relevant in some circumstances. In Tavakoli v Imisides (No 4) [2019] NSWSC 717, permanent injunctions were granted partly because the defendant had "no money or assets which the plaintiff [could] obtain in any remedy in damages" (at [57]).
Examples Where Permanent Injunctions Were Granted
By contrast to Greenwich v Latham (No 2), permanent injunctions have been granted in cases where there was clear evidence of intention to republish. In Chau v Australian Broadcasting Corp (No 3) [2021] FCA 44; (2021) 386 ALR 36 at 82 [184], Justice Rares granted a final injunction because "the publishers have made clear, they intend to continue publishing it and so making those imputations that I have found to be false, seriously defamatory and otherwise indefensible."
Similarly, in Lachaux at [238], the court found that "the claimant had successfully established that, unless an injunction were granted, the defendants would continue to publish the defamatory articles."
Practical Implications
The Greenwich v Latham (No 2) decision highlights several practical considerations for defamation litigants:
Permanent injunctions are not automatically granted following a successful defamation claim
Evidence of a genuine risk of republication is essential
Courts will carefully balance free speech considerations against protection of reputation
Even without a permanent injunction, defamation plaintiffs retain the right to commence new proceedings if republication occurs
Section 23 of the Defamation Act 2005 (NSW) (and equivalent provisions in other jurisdictions) requires leave of the court to commence further proceedings against the same defendant for the same or like matter, but courts are unlikely to refuse leave if republication causes new or additional damage
This decision serves as a reminder that permanent injunctions in defamation cases remain exceptional remedies that will only be granted when specific circumstances warrant such intervention.