Injunctions, privacy and the public interest

Proposal 12–2 Relevant court acts should be amended to provide that, when considering whether to grant injunctive relief before trial to restrain publication of private (rather than confidential) information, a court must have particular regard to freedom of expression and any other countervailing public interest in the publication of the material.

12.23 An interlocutory injunction is the most significant remedy to prevent a threatened invasion of privacy, such as the broadcast or publication of private information. However, of all remedies, an interlocutory injunction restraining publication is also the most significant restriction on freedom of speech and the freedom of the media to report on matters of public interest and concern.

12.24 There is a strong and justifiable concern that undue restrictions upon freedom of speech and the freedom of the press might arise from unmeritorious claims to prevent the disclosure of allegedly ‘private’ information in which there is a legitimate public interest.

12.25 The ALRC proposes that courts should be directed by appropriate legislation to consider countervailing interests in freedom of expression and other matters of public interest when considering the award of an interlocutory injunction to restrain the publication of private information.

12.26 Several stakeholders supported this proposal.[28] The ALRC would welcome further comment on the desirability and practicability of the proposal and the form and content of the proposed provision.

12.27 The statutory tort for serious invasion of privacy proposed in this Discussion Paper itself provides for a public interest balancing process.[29] In addition to this, the statute could further provide that courts must have particular regard to freedom of expression, when considering whether to grant injunctive relief. The experience in the United Kingdom, as discussed later in this chapter, would be relevant to the function and desirability of such a provision.

12.28 However, this proposal would arguably be of particular benefit, on its own, if the statutory cause of action is not enacted. As set out below, there is some uncertainty as to the approach that a court should take to applications for injunctive relief in some cases. The question is whether it would be desirable for legislation to direct or guide the approach that the courts should take.

12.29 This may be justified to promote not only coherence but also the balancing of freedom of expression and other public interests with privacy protection. The following sections set out the complex legal principles and issues that underpin this proposal.

12.30 In a privacy case, perhaps even more so than in other cases such as cases for defamation,[30] the stakes are high for both parties. Privacy in information, once lost, may be lost forever,[31] and no amount of compensation will render the information entirely private again.[32] Equally, by the time the entitlement of the defendant to publish is adjudicated in a final hearing, the appropriate opportunity to reveal the relevant information or contribute to a public debate may be lost as the information’s novelty, relevance or interest is overtaken by other events.

12.31 As with all court orders, the ultimate efficacy of an injunction will depend on the jurisdiction of the court over the apprehended conduct, as well as the location of the respondent. The court will not grant an injunction where it would be futile to do so, and one ground for futility may be the wide publicity already given to the relevant information.[33]

12.32 According to equitable principles, as set out by the High Court of Australia in Beecham Group v Bristol Laboratories Pty Ltd[34] and reaffirmed in ABC v O’Neill,[35] before the court will exercise its discretion to award an interlocutory injunction, an applicant must satisfy the court that:

  • there is a prima facie case, in the sense that there is a serious question to be tried as to the plaintiff’s entitlement to relief, and a sufficient[36] likelihood of success to justify the preservation of the status quo pending trial;

  • the plaintiff is likely to suffer injury for which damages will not be an adequate remedy;[37] and

  • the balance of convenience favours the granting of an injunction.[38]

Injunctions in defamation and breach of confidence

12.33 Applications for injunctive relief to restrain publication are commonly made in defamation and breach of confidence cases.

12.34 In actions for defamation, an applicant faces additional hurdles to those set out in Beecham, when seeking an interlocutory injunction. The so-called rule in Bonnard v Perryman is derived from Lord Coleridge CJ’s statement in that case that defamation cases require ‘exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong’.[39] In particular, if a defendant asserts that it will defend the defamatory statement as true, then, ‘in all but exceptional cases’,[40] the courts will exercise their discretion to refuse the injunction, leaving the defendant to publish and risk liability for damages.

12.35 This caution in defamation cases is well-established in Australian law, although the defendant must go further than merely raising the defence.[41] In ABC v O’Neill, Gleeson CJ and Crennan J noted that, in defamation cases, particular attention will be given to the public interest in free speech when considering whether an interlocutory injunction should be granted.[42] Gummow and Hayne JJ referred to the need for the judge to consider ‘the … general and … profound issue involved in the policy of the law respecting prior restraint of publication of allegedly defamatory matter’.[43]

12.36 Gummow and Hayne JJ also emphasised that claims for interlocutory injunctions in defamation in Australia, although reflecting the principle in Bonnard, are ‘but one of a species of litigation to which the principles in Beecham apply’.[44] That broader species includes cases where the disposal of the interlocutory application would effectively determine the case in its entirety, but also, presumably, applications for interlocutory injunctions in the auxiliary jurisdiction in general.

12.37 In direct contrast to defamation cases, courts considering injunctions to restrain a breach of confidence do not exercise any special caution in the interests of free speech or other broadly defined public interests. Both in claims for breach of an equitable obligation of confidence, which lie in equity’s exclusive jurisdiction,[45] and perhaps even more so in claims to restrain the breach of a contractual obligation of confidence,[46] which lie in the auxiliary jurisdiction,[47] authority in Australia takes a narrow approach to public interest considerations that would justify a breach.

12.38 The principle of general application, where the court is considering an injunction to restrain the breach of an equitable obligation of confidence, was stated by Gummow J in Re Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd:

That principle, in my view, is no wider than one that information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed.[48]

12.39 The current Australian approach differs from the much broader approach to public interest taken in the United Kingdom in such cases.[49] In a later case, Gummow J stated:

(i) an examination of the recent English decisions shows that the so-called ‘public interest’ defence is not so much a rule of law as an invitation to judicial idiosyncrasy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or to override the obligation of confidence, and (ii) equitable principles are best developed by reference to what conscionable behaviour demands of the defendant not by balancing and then overriding those demands by reference to matters of social or political opinion.[50]

12.40 More recently, it has been said that ‘[i]t is true that the existence of, and /or the extent of any public interest defence to a breach of confidentiality is by no means clear and settled in Australia’.[51]

Injunctions to restrain disclosure of private information

12.41 Questions then arise as to what approach the courts should take, in the absence of a statutory cause of action for invasion of privacy, where they are considering a claim for misuse or disclosure of private (rather than confidential) information.[52] Should ‘private information’ cases be seen as more analogous to defamation cases or as more analogous to traditional breach of confidence cases? Should a similar caution as in defamation cases be exercised when considering applications for interlocutory injunctions to restrain publication of private information?

12.42 In many cases where there is a potential for inconsistency between different causes of action, or between common law and statutory regimes, the High Court of Australia has emphasised the need for coherence in the development of the common law.[53]

12.43 Although they may overlap, or arise concurrently, cases involving the apprehended disclosure of private information raise somewhat different issues from apprehended defamation cases. Unlike in a defamation case, a defendant in a privacy case cannot assert the truth of the disclosed information as a defence.[54] There is, however, just as strong and justifiable a concern that undue restrictions upon freedom of speech and the freedom of the press might arise from unmeritorious claims to prevent the disclosure of allegedly ‘private’ information in which there is a legitimate public interest. It is therefore strongly arguable that similar considerations to those in defamation cases should apply where the defendant asserts a defence of sufficient strength to justify the court taking a cautious approach.[55] The ALRC proposal reflects that concern, and suggests that the courts should be directed to consider countervailing public interests when dealing with an application for an injunction to restrain the publication of private information.

12.44 To avoid dispute and ensure consistency, any guidance by legislation should apply expressly to any action to prevent publication of information on the basis that it is private (rather than confidential) information. The key point is that, whether the legal protection of private information at common law in the future takes the form of a new tort or an extended action for breach of confidence, the court should be required to consider and weigh any countervailing public interests, such as freedom of expression, in its disclosure. This should apply regardless of whether the court is exercising its exclusive or auxiliary jurisdiction.

12.45 The ALRC’s proposal has a similar intent to the provisions in s 12(4) of the Human Rights Act 1998 (UK), although it is in more general terms. That provision reflects the concern that injunction applications in privacy actions may have a chilling effect on freedom of speech. Section 12(4) reinforces the requirement of the European Convention on Human Rights that the right to privacy in art 8 be balanced with the right to freedom of expression in art 10, when determining whether there has been an actionable invasion of privacy at all. While this balancing already takes place when determining whether there is an actionable misuse of private information,[56] s 12 provides added protection of art 10 rights:[57]

s 12 Freedom of expression

This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
...

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a) the extent to which—

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.

12.46 Section 12(4) of the Human Rights Act 1998 (UK) has been considered in a number of cases since its enactment and by a Joint Committee of the House of Lords and House of Commons in 2012. The courts rejected an interpretation that the sub-section requires them to give greater weight to the Convention rights to freedom of expression than to the plaintiff’s interest in privacy. Lord Hope in Campbell v MGN Ltd:

[A]s Sedley LJ said in Douglas v Hello! Ltd you cannot have particular regard to article 10 without having equally particular regard at the very least to article 8: see also Re S (A Child) (Identification: Restrictions on Publication) where Hale LJ said that section 12(4) does not give either article pre-eminence over the other. These observations seem to me to be entirely consistent with the jurisprudence of the European court.[58]

12.47 The House of Lords and House of Commons Joint Committee’s Report stated:

We do not think that section 12(4) of the Human Rights Act 1998 ... means that article 10 has precedence over article 8 ... However, we support the decision of Parliament to make clear in law the fundamental importance of freedom of expression and would be concerned that removing section 12(4) might suggest that this is no longer the case.[59]

12.48 In the light of well-established principles concerning ex parte applications,[60] and the strength of the defendant’s case in interlocutory proceedings,[61] it is not suggested that provisions similar to subsections (2) and (3) of s 12 of the Human Rights Act (UK) are necessary or desirable in Australia.[62]

12.49 It should also be noted that this proposal is not intended to affect the existing law with regard to applications for injunctions to restrain the breach of an equitable or contractual obligation of confidence As explained above, particular considerations apply to the justification for a disclosure by a confidant in breach of a pre-existing obligation or by a third party who has knowledge that the information was imparted in confidence,[63] where the law, for reasons of public interest, seeks to uphold and reinforce the obligation undertaken. Arguably, different considerations should apply, when there is no such obligation as the foundation for the plaintiff’s application, but the plaintiff relies merely on the nature of the information itself and the reasonable expectation of privacy that arises from the particular circumstances. In such cases, it is appropriate that greater weight be given to countervailing interests and matters of public interests.

 

[28] RSPCA, Submission 49; Women’s Legal Service Victoria and Domestic Violence Resource Centre Victoria, Submission 48; ABC, Submission 46; Telstra, Submission 45; Arts Law Centre of Australia, Submission 43; Pirate Party of Australia, Submission 18.

[29] See Ch 8.

[30] Defamation is essentially concerned with false and derogatory statements: David Rolph, ‘Irreconcilable Differences? Interlocutory Injunctions for Defamation and Privacy’ (2012) 17 Media & Arts Law Review 170. The distinction may not be clear cut: damage to reputation may be difficult to repair, and some false slurs will inevitably leave a residual doubt in people’s minds, so that the harm is in fact irreparable: Hill v Church of Scientology of Toronto (1995) 2 SCR 1130, [166]. However, many false statements of ‘fact’ can be proved to be false.

[31] Prince Albert v Strange (1849) 1 Mac & G 25, 46 (Lord Cottenham): ‘In the present case, where privacy is the right invaded, postponing the injunction would be equivalent to denying it altogether.’ See also Tchenguiz v Imerman [2010] EWCA (Civ) 908, [54] (Lord Neuberger MR). Lord Nicholls made the same point as to confidentiality in Cream Holdings Ltd v Banerjee (2004) 1 AC 253, [18]. See also Eric Barendt, Freedom of Speech (Oxford University Press, 2nd ed, 2007) 136.

[32] The court may, however, decide that damages would be an adequate remedy, and thus, on the threshold equitable test, refuse the injunction: see Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, where Young J refused the plaintiff’s claim for an injunction to restrain the broadcast of footage obtained while trespassing on this ground, obviating the need to consider public interest.

[33] Candy v Bauer Media Limited [2013] NSWSC 979, [20]; Mosley v News Group Newspapers [2008] EWHC 687 (QB), [36]. See Normann Witzleb, ‘“Equity Does Not Act in Vain”: An Analysis of Futility Arguments in Claims for Injunctions’ (2010) 32 Sydney Law Review 503. A related question of fact is whether, for the purposes of the equitable obligation, the information had the quality of confidence or whether it is at the relevant time in the public domain. Where publication is not widespread, there may still be some point to restricting further publication: Johns v Australian Securities Commission (1993) 178 CLR 408, [460]–[462] (Gaudron J); Australian Football League v The Age Company Ltd (2006) 15 VR 419, [428]–[429]; Attorney General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109. Contractual obligations of confidence raise different considerations: see Massingham v Shamin [2012] NSWSC 288 (23 March 2012) and cases referred to therein.

[34] Beecham Group v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.

[35] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. See further David Rolph, ‘Showing Restraint: Interlocutory Injunctions in Defamation Cases’ (2009) 14 Media & Arts Law Review 255; Benedict Bartl and Dianne Nicol, ‘The Grant of Interlocutory Injunctions in Defamation Cases in Australia Following the Decision in Australian Broadcasting Corporation v O’Neill’ (2006) 25 University of Tasmania Law Review 156.

[36] ‘The requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought… [such as the fact that] the grant or refusal of the interlocutory application would dispose of the action finally’: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [71]-[72] (Gummow and Hayne JJ).

[37] This second factor is not necessary if the application is in the exclusive equitable jurisdiction of the court, for example to restrain the breach of an equitable duty of confidence: Meagher, Heydon and Leeming, above n 18, [21–345].

[38] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [19] (Gleeson CJ and Crennan J); Ibid, [65]–[72] (Gummow and Hayne JJ).

[39] Bonnard v Perryman [1891] 2 Ch 269, 283-285. Gummow and Hayne JJ point out in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [80] that the court in Fleming v Newton [1848] 9 ER 797 was wary both of usurping the role of the jury at trial and of constraining the liberty of the press after the lapsing of a statutory system of press licensing.

[40] Bonnard v Perryman (1891) 2 Ch 269, 285.

[41] National Mutual Life Association of Australasia Ltd v GTV Corpn Pty Ltd [1989] VR 747; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; Clarke v Queensland Newspapers Pty Ltd [2000] 1 Qd R 233; Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440, [442]–[443].

[42] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [19].

[43] Australian Broadcasting Corporation v O’Neill (2006) has been applied in several cases: AAMAC Warehousing & Transport Pty Limited v Fairfax Media Publications Pty Limited [2009] NSWSC 1030 (28 September 2009); Crisp v Fairfax Media Ltd [2012] VSC 615 (19 December 2012); Allan v The Migration Institute of Australia Ltd [2012] NSWSC 965 (13 August 2012); cf Tate v Duncan-Strelec [2013] NSWSC 1446 (27 September 2013).

[44] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, [75].

[45] The exclusive jurisdiction arises where a court of equity is dealing with equitable claims: Meagher, Heydon and Leeming, above n 18, [21–015].

[46] Re Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd [1987] FCA 266 (13 August 1987) [57].

[47] The auxiliary jurisdiction of equity arises where the court is considering equitable remedies in aid of common law wrongs or to prevent the unconscionable reliance on common law rights: Meagher, Heydon and Leeming, above n 18, [21–345].

[48] Re Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd [1987] FCA 266 (13 August 1987) [57].

[49] Australian Football League v The Age Company Ltd (2006) 15 VR 419, [72]–[94]; Re Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd [1987] FCA 266 (13 August 1987), [41]; AG Australia Holdings Ltd v Burton 58 NSWLR 464, [173]; Meagher, Heydon and Leeming, above n 18, [41–115]–[41–125]. Cf Aplin et al, above n 19, [16.05]–[16.57] on the more recent, more expansive approach.

[50] Smith Kline and French Laboratories (Aust) Ltd v Secretary, Dept of Community Services and Health [1990] FCR 73, 111. See further, Australian Football League v The Age Company Ltd (2006) 15 VR 419, [72]–[94].

[51] Australian Football League v The Age Company Ltd (2006) 15 VR 419, [75].

[52] Spelman v Express Newspapers [2012] EWHC 355 (QB) (24 February 2012), [64]: ‘There is some uncertainty as to whether, and if so when, a court should refuse an injunction on the basis of Bonnard v Perryman when it is sought by a claimant who advances his cases only on the basis of privacy'.

[53] Sullivan v Moody (2001) 207 CLR 562. See further, Rolph, ‘Irreconcilable Differences? Interlocutory Injunctions for Defamation and Privacy’, above n 29, 187-190; Tilbury, above n 7, 130 ff.

[54] In the past, many claimants in Australia used the action for defamation to protect their privacy against disclosure of embarrassing private facts, because in some states, the defendant could not defend the defamation merely on the basis that the imputations were true, but also had to show a public interest or public benefit in their publication. This is no longer the case due to changes to the law by the uniform state Defamation Acts of 2005: C Sappideen and P Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 635–639.

[55] There is also a concern that, if the applicable considerations or approach to be applied by the courts in defamation cases and privacy cases differed, a claimant may attempt to avoid the cautious approach in defamation cases, by framing or pleading his or her case, inappropriately, as a privacy case: Lord Browne of Madingly v Associated Newspapers Ltd [2007] EWHC 202 (QB), [28] (Eady J). This concern motivated Tugendhat J in Terry v Persons Unknown [2010] EWHC 202 (QB) to note at [88] that ‘it is a matter for the court to decide whether the principle of free speech prevails or not, and that it does not depend solely upon the choice of the claimant as to his cause of action’. He dismissed the claimant’s application for an injunction to restrain the publication of confidential and private information, at [123]: ‘Having decided that the nub of this application is a desire to protect what is in substance reputation, it follows that in accordance with Bonnard v Perryman no injunction should be granted’. Witzleb argues that this approach is inconsistent with the requirements of the Human Rights Act 1998 (UK); N Witzleb, ‘Interim Injunctions for Invasions of Privacy: Challenging the Rule in Bonnard v Perryman?’ in N Witzleb et al (eds), Emerging Challenges in Privacy Law: Comparative Perspectives (Cambridge University Press, 2014). Cf Rolph, ‘Irreconcilable Differences? Interlocutory Injunctions for Defamation and Privacy’, above n 29, on the Australian position.

[56] Campbell v MGN Ltd [2004] 2 AC 457.

[57] Joint Committee on Privacy and Injunctions, Privacy and Injunctions, House of Lords Paper No 273, House of Commons Paper No 1443, Session 2010–12 (2012), 19-22.

[58] Campbell v MGN Ltd [2004] 2 AC 457, [488] (citations omitted).

[59] Joint Committee on Privacy and Injunctions, Privacy and Injunctions, House of Lords Paper No 273, House of Commons Paper No 1443, Session 2010–12 (2012), [59]. David Price QC was quoted at [58] as having told the committee: ‘If the purpose of section 12 was to give the benefit of the doubt to freedom of expression then it has certainly failed’. Professor Gavin Phillipson of Durham Law School, quoted at [55], considered that s 12(4) was not intended ‘to establish priority for freedom of expression ... [and] it made more sense to read it as requiring judges to give as much weight to freedom of expression as the Convention itself allows’.

[60] See further, Meagher, Heydon and Leeming, above n 18, [21–425].

[61] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Beecham Group v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.

[62] Section 12(2) and (3) of the Human Rights Act 1998 (UK) provides: ‘(2) If the person against whom the application for relief is made (the respondent) is neither present nor represented, no such relief is to be granted unless the court is satisfied—(a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed’. On the meaning of ‘likely’ in subsection (3), see Cream Holdings Ltd v Banerjee (2004) 1 AC 253 where Lord Nicholls stressed at [22] that ‘likely’ could mean different things depending upon its context; ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 (19 April 2011), [6], [24]: '...likely in the sense of more likely than not'.

[63] Meagher, Heydon and Leeming, above n 18, [41–115]-[41–125]. See further, Australian Football League v The Age Company Ltd (2006) 15 VR 419, [72]-[94]; Re Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd [1987] FCA 266 (13 August 1987), [41]. Cf Aplin et al, above n 19, [16.05]–[16.57] on the recent more expansive English approach.