Irreconcilable Differences? Interlocutory Injunctions for Defamation and Privacy

Abstract

The growing recognition of enforceable rights to privacy across the common law world creates tensions with the existing protections afforded to another dignitary interest, reputation, through the tort of defamation. One area in which this tension is acute is the disposition towards injunctive relief. Defamation law has consistently taken a restrictive approach to injunctive relief, based on a commitment to freedom of speech and an aversion to prior restraint. Yet courts, particularly in the United Kingdom, have shown a readiness to grant injunctions to protect privacy. The interaction between reputation and privacy has not been adequately explored. Taking as its starting-point the decision of Tugendhat J in Terry v Persons Unknown, this article analyses the potentially conflicting approaches to injunctive relief in defamation and privacy. It argues that seeking to ascertain whether the essence of the proceedings in reputation or privacy does not provide a principled approach to the resolution of this problem. The interaction between defamation and privacy poses a problem for the coherent and orderly development of the law. Viewed from this perspective, the article argues that a novel cause of action needs to develop to ensure coherence with the well-established cause of action for defamation. In doing so, it examines a difficult issue of principle raised by this interaction, such as the concept of ‘false privacy’, as well as challenging the view that an award of damages vindicates a plaintiff’s reputation, whereas a plaintiff’s privacy can only be protected by an injunction.

Keywords: privacy, defamation, reputation, injunctions, prior restraint, Australia, United Kingdom, coherence of the law, breach of confidence, vindication, false privacy

JEL Classification: K10, K30