Showing restraint: interlocutory injunctions in defamation cases

Abstract

Until recently, there was some disagreement among courts at first instance and intermediate appellate courts across Australia as to the proper approach to the grant of an interlocutory injunction to restrain the apprehended publication of defamatory matter. The decision of the High Court of Australia in Australian Broadcasting Corporation v O'Neill has provided some degree of certainty in relation to this issue. This article analyses the decision and evaluates its impact on the principles and practice in this area of law. The case also raises important questions about the concepts of 'trial by media' and 'reputation' for the purposes of defamation law, which warrant examination. However, whatever clarity may have been introduced by the judgment of the High Court may need to be re-assessed in the near future as a result of developments in both Australia and, in particular, the United Kingdom in relation to the direct protection of privacy.