Playing Possum? Privacy, Freedom of Speech and the Media Following ABC V Lenah Game Meats; Part 1: The Availability of an Interlocutory Injunction to Prevent Publication

U of Melbourne, Public Law Research Paper No. 38

Media & Arts Law Review, Vol. 7, No. 1, p. 1, 2002

26 Pages Posted: 31 Mar 2003

Abstract

Attempts to suppress the publication of material by the media commonly raise tensions between freedom of expression and other fundamental rights or values. Under the Australian legal system, such tensions are often resolved by a technical search for an applicable cause of action rather than by reference to constitutional norms. The recent High Court decision in ABC v Lenah Game Meats Pty Ltd [2001] HCA 63, illustrates how the search for a remedy may inhibit the development of consistent rules for resolving tensions between fundamental rights and values, as well as distorting the doctrinal basis of technical causes of action. Part I of this article explains the approaches taken by the High Court to the award of an interlocutory injunction to restrain publication of material obtained by means of trespass. This part of the article suggests that the decision is an example of the failure of the Australian legal system to address the policy issue of the extent to which the law should protect private material that is neither confidential nor defamatory. Part II of the article will explain the implications of the decision for the future development of the action for breach of confidence, and for the protection of privacy interests and freedom of expression, under Australian law.

JEL Classification: K19

Suggested Citation

Lindsay, David F., Playing Possum? Privacy, Freedom of Speech and the Media Following ABC V Lenah Game Meats; Part 1: The Availability of an Interlocutory Injunction to Prevent Publication. U of Melbourne, Public Law Research Paper No. 38, Media & Arts Law Review, Vol. 7, No. 1, p. 1, 2002, Available at SSRN: https://ssrn.com/abstract=391062 or http://dx.doi.org/10.2139/ssrn.391062

David F. Lindsay (Contact Author)

UTS: Law ( email )

15 Broadway Ultimo
PO Box 123
Sydney, NSW 2007
Australia

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