Playing Possum? Privacy, Freedom of Speech and the Media Following ABC v. Lenah Game Meats Pty Ltd; Part II : The Future of Australian Privacy and Free Speech Law, and Implications for the Media

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 (see (2002) 7(1) MALR 1) explained the approaches taken by the High Court to the award of an interlocutory injunction to restrain publication of material obtained by means of trespass, and suggested 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 explains 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