Recommendation 12–7 The Act should provide that the court may at any stage of proceedings grant an interlocutory or other injunction to restrain the threatened or apprehended invasion of privacy, where it appears to the court to be just or convenient and on such terms as the court thinks fit.

Recommendation 12–8 The Act should provide that, when considering whether to grant injunctive relief before trial to restrain publication of private information, a court must have particular regard to freedom of expression and any other matters of public interest.

12.118 In privacy actions, plaintiffs are highly likely to seek a court order or injunction to prevent the commission or continuance of a serious invasion of privacy. For example, a plaintiff may seek to prevent the disclosure or publication of their private information to or by another person or a media entity.

12.119 The power of the courts to order injunctions is usually set out in the enabling statute for the court,[137] and is subject to a substantial body of equitable principles or specific statutory provisions.[138] 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.[139] The court will not grant an injunction where it would be futile to do so: one ground for futility may be the wide publicity already given to the relevant information. Previous law reform inquiries recommended that courts be able to order injunctive relief in relation to the new cause of action.[140]

12.120 In some cases, a final and permanent injunction may be sought at the trial of the action. However, in most privacy cases, the most significant remedy will be an interlocutory injunction to prevent a threatened invasion of privacy—such as the broadcast or publication of private information. An interlocutory injunction is sought prior to the trial, sometimes ex parte in cases of great urgency, to maintain the status quo. In the case of a privacy action against the media for example, the status quo would usually be the non-publication of the material.

12.121 In a privacy case, perhaps even more so than in other cases such as defamation cases,[141] the stakes are high for both parties at the interlocutory stage. For the plaintiff, privacy in information, once lost, may be lost forever,[142] and no amount of compensation will render the information entirely private again.[143] For the defendant, on the other hand, there is the consideration that by the time the entitlement to publish is adjudicated in a final hearing, the appropriate opportunity to reveal the relevant information or to contribute to a public debate may be lost as the information’s novelty, relevance or interest is overtaken by other events. As Lord Nicholls noted in Reynolds v Times Newspapers: ‘News is a perishable commodity’.[144]

12.122 This means that, of all remedies, an interlocutory injunction restraining publication is arguably the most significant restriction on freedom of speech and the freedom of the media to report on matters of public interest and concern. There is therefore a strong and justifiable concern that unmeritorious claims to prevent the disclosure of allegedly ‘private’ information, in which there is a legitimate public interest, might chill freedom of speech and the freedom of the press.

12.123 The Terms of Reference for this Inquiry require the ALRC to make recommendations as to ‘the necessity of balancing privacy with other fundamental values including freedom of expression and open justice’. The most significant recommendation reflecting this necessity is the requirement that the court must be satisfied that, for the plaintiff to have a cause of action, the public interest in privacy outweighs any countervailing public interest.[145]

12.124 In addition, the ALRC recommends that courts should be specifically directed by the legislation to consider freedom of expression and other matters of public interest when considering whether to grant an interlocutory injunction to restrain the publication of private information. This recommendation is based on s 12(4) of the Human Rights Act 1998 (UK), discussed below.

12.125 In view of the ordinary principles governing the grant of an interlocutory injunction, discussed below, and the requirement for actionability set out in Chapter 8, it may be argued that an additional provision directing courts to consider any matters of public interest when considering an injunction application is unnecessary.

12.126 According to equitable principles, as set out by the High Court of Australia in Beecham Group v Bristol Laboratories Pty Ltd[146] and reaffirmed in ABC v O’Neill,[147] 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[148] 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;[149] and

  • the balance of convenience favours the granting of an injunction.[150]

12.127 In satisfying the first requirement of a prima facie case and sufficient likelihood of success, the plaintiff will already have needed to address the balancing process as part of the actionability requirements of the new tort. The public interest in freedom of expression and any other public interest would need to be addressed by the plaintiff to make out a prima facie case and to show a likelihood of success at trial on the claimed cause of action. However, the ALRC nevertheless considers that it would be valuable for the legislation to indicate the clear parliamentary intention that courts considering injunctive relief should carefully weigh the strength of the competing interests of the parties in relation to that remedy. In particular, such a provision would give added assurance to members of the media, who may be concerned that a statutory cause of action would unduly chill their ability to report on matters of public concern.

12.128 The ALRC is not suggesting that the legislation entrench a particular approach or weight to the competing interests of the parties. As the International Covenant on Civil and Political Rights recognises, both the individual and public interests in the protection of privacy and the individual and public interests in freedom of speech are important values and neither is absolute nor always in conflict with the other.[151] In particular, the ALRC is not suggesting any rigid or default rule that courts should be exceptionally reluctant, as in defamation cases, nor ready, as in breach of confidence cases, to grant an injunction. Those two differing types of case protect and balance different interests than those that will be protected under the new tort, even though sometimes the interests may overlap. Rather, the recommendation confirms that competing public interests are to be considered when considering an injunction application.

Injunctions in defamation and breach of confidence

12.129 An applicant for an interlocutory injunction in defamation cases faces an additional hurdle in the application of the rules set out in Beecham.[152]This hurdle may be described as the rule in Bonnard v Perryman, whichderives from Lord Coleridge CJ’s statement 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’.[153] In particular, if a defendant asserts that it will defend the defamatory statement as true, then, ‘in all but exceptional cases’,[154] the courts will exercise their discretion to refuse the injunction, leaving the defendant to publish and risk liability for damages.

12.130 This caution in defamation cases is well-established in Australian law, although the defendant must go further than merely raising the defence.[155] 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.[156] 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’.[157]

12.131 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’.[158] The broader species to which their Honours were referring presumably comprises those cases where the disposal of the interlocutory application would effectively determine the case in its entirety, but might possibly include applications for interlocutory injunctions in the auxiliary jurisdiction in general.

12.132 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. The courts in both equitable and contractual cases emphasise that, when granting an injunction to restrain a breach of confidence, they are holding the defendant to his or her pre-existing commitment or obligation, usually voluntarily undertaken, not to disclose the plaintiff’s confidential information. In the case of a third party, the third party is bound when they know that the information was imparted in such circumstances.[159] On many occasions, the courts have strongly emphasised the public interest in the law’s upholding of confidences: if a person cannot rely on confidentiality being upheld, he or she is unlikely to impart the information. In many circumstances, withholding the information would have a deleterious effect on a range of social problems, such as public health or the prevention and detection of criminal conduct. For example, immunity from disclosure of the identity of individuals who give information to authorities about suspected neglect or ill-treatment of children is given because of the public interest served in having such conduct reported.[160]

12.133 Both in claims for breach of an equitable obligation of confidence, which lie in equity’s exclusive jurisdiction,[161] and perhaps even more so in claims to restrain the breach of a contractual obligation of confidence,[162] which lie in the auxiliary jurisdiction,[163] authority in Australia takes a narrow approach to public interest considerations that would justify a breach. Public interest is confined to the exposure of ‘iniquity’. 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.[164]

12.134 The current Australian approach differs from the much broader approach to public interest taken in the UK in such cases.[165] 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.[166]

12.135 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’.[167] Breach of confidence claims arise in a wide range of social and commercial contexts and the ALRC is not concerned with considering whether a broader public interest test should be introduced in breach of confidence actions in general. The issue is relevant only in relation to the impact the approach may have on the way that the courts deal with privacy claims.

Injunctions to restrain disclosure of private information

12.136 If the statutory cause of action were enacted, questions will inevitably arise as to what approach the courts should take where they are considering a claim for misuse or disclosure of private (rather than confidential) information.[168] Should ‘private information’ cases be seen as more analogous to defamation cases or as more analogous to 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?

12.137 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.[169] It is important, therefore, that actions for invasion of privacy be treated consistently with other actions where rationales are similar.[170]

12.138 Depending on their facts, actions for invasion of privacy under the new tort would sit somewhere between defamation and breach of confidence actions. They may share some of the characteristics of both actions but differ in other ways. Like confidential information, the privacy of information once lost, may be lost forever. This is particularly so in the digital era where it is often simply not possible to erase all disclosures of private information on the internet, despite attempts and even court directions to do so.[171] A refusal to give injunctive relief to restrain the publication of private information would therefore, like that to prevent a breach of confidence, ‘substantially determine the plaintiff’s claim for final injunctive relief’.[172] Unlike a breach of confidence claim, however, the claim is not necessarily based on a pre-existing obligation or commitment to maintain privacy. And, in contrast to the current Australian law on breach of confidence, the new statutory cause of action would require the court to consider a broader range of public interest matters than matters which may come within the description of an ‘iniquity’.

12.139 Unlike a defamation case, a defendant in a privacy case cannot assert the truth of the disclosed information as a complete defence.[173] The complaint in defamation is that the defendant has published false defamatory statements. Nearly all cases of invasion of privacy by wrongful disclosure in other jurisdictions involve information which might be assumed to be true.[174]

12.140 There is, however, just as strong and justifiable a concern that a chilling effect upon freedom of speech and the freedom of the press may be achieved by unmeritorious claims to prevent the disclosure of allegedly ‘private’ information in which there is a legitimate public interest. It may therefore be 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.[175]

12.141 The ALRC recommendation reflects that concern, and, without suggesting that the same approach to defamation cases should prevail, suggests that at least 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. It will be a matter for the courts as to how the balance of protection should be struck in particular cases, in the light of technological and social conditions very different from 1891 when Bonnard v Perryman was decided.[176] As mentioned above, the existence of such a provision would indicate a clear intention that public interest should be considered and would provide considerable assurance to media and other stakeholders concerned that the new tort would unduly impinge on freedom of speech.

12.142 The ALRC’s recommendation has a similar intent to s 12(4) of the Human Rights Act 1998 (UK), although it is in more general terms. 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,[177] s 12 provides the added protection of art 10 rights:[178]

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.

12.143 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 have 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 noted

[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.[179]

12.144 Similarly, 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.[180]

12.145 Section 12(2) and (3) of the Human Rights Act 1998 (UK) provide:

(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.

12.146 However, in the light of established principles concerning ex parte applications,[181] and the strength of the defendant’s case in interlocutory proceedings, set out in ABC v O’Neill,[182] it is not suggested that provisions similar to s 12(2) and (3) of the Human Rights Act (UK) are necessary or desirable in Australia.[183]