Showing Restraint: Interlocutory Injunctions in Defamation Cases

Abstract:     
The proper test to be applied to the grant of an interlocutory injunction to restrain the publication of defamatory matter is rarely litigated at the highest appellate level. The High Court of Australia's decision in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 provided an opportunity to clarify the applicable principles and potentially to end the division of judicial and academic opinion between what has been characterised as the 'rigid' and the 'flexible' approaches to such relief. This article analyses the reasoning in A.B.C. v O’Neill. It questions whether it can be properly claimed that general equitable principles apply to the grant of injunctions in defamation cases when, in substance, the approach of the majority in A.B.C. v O'Neill appears to treat defamation as a special case. Beyond an engagement with the principles governing injunctive relief in defamation cases, this article argues that A.B.C. v O'Neill raises further, difficult issues of principle, such as the value to be ascribed to freedom of speech; the meaning of ‘trial by media’; the role of reputation in defamation law; and the emerging tension between injunctions to restrain the publication of defamatory matter and invasions of privacy.

Keywords: tort, defamation, Australia, interlocutory injunctions, equitable principles, public interest, public benefit, freedom of speech, prior restraint, trial by media, reputation, privacy

JEL Classifications: K10, K13, K30, K41

Accepted Paper Series