Irreconcilable differences? Interlocutory injunctions for defamation and privacy

Abstract

Interlocutory injunctions to restrain the publication of defamatory matter are rarely granted, as the High Court of Australia recently reaffirmed in Australian Broadcasting Corporation v O'Neill. This is one of the few areas of law where freedom of expression is consistently preferred over the protection of reputation. Yet this small but important protection of freedom of expression is potentially threatened by the development of direct privacy protection. Recent English authorities suggest that courts in that jurisdiction might be disposed to grant injunctions to restrain the publication of matter invading personal privacy. A liberal approach to injunctive relief in such claims might have the undesirable effect of subverting the well-established, restrictive approach to injunctive relief in defamation cases. As a statutory cause of action for invasion of privacy has been recommended by recent law reform reports in Australia and is receiving renewed attention from the federal government, the issue of the relationship between injunctions for defamation and privacy warrants examination.