AB v ABC

In AB v Australian Broadcasting Corporation, an interlocutory injunction was issued by McGrath J in the Supreme Court of New South Wales to prevent the ABC from publishing group chat messages exchanged between three professional Australian sports identities, referred to as AB, CD and EF. The messages in question are said to contain shared jokes, insults directed at other named individuals known to AB, CD and EF in their sport, and crude descriptions of sexual acts and domestic violence. AB, CD and EF alleged that, if published, the text messages would be likely to lead to serious harm to their reputations as well as their financial interests. EF was concerned, in particular, that publication would be “sensationally decontexualised” and would be devastating to his work as an advocate within and outside his sport.

ABC journalist Marnie Vinall obtained copies of the messages from AB’s former partner, GH. These messages were obtained by GH and shared with Ms Vinall without AB’s knowledge or consent.

AB, CD and EF obtained the interlocutory injunction on the basis that the plaintiffs had established a prima facie case that publication of the messages would amount to a breach of confidence. McGrath J also granted suppression orders over all of the messages and also over the identities of AB, CD, EF, and GH.

Injunction for threatened breach of confidence

An action in breach of confidence has three elements: 

(1)    the information in question has the necessary quality of confidence (meaning that the information must not be public property or in the public domain);
(2)    the information was imparted in circumstances importing an obligation of confidence; and 
(3)    threatened unauthorised use of that information to the plaintiff’s detriment.

On the facts as alleged by the plaintiffs, McGrath J found that the plaintiffs had established a strong prima facie case in respect of each of the elements. 

In relation to the first element, McGrath J found that the text messages were confidential information: “they are private exchanges between the plaintiffs on a private Group Chat which they have not disclose to any other person.” The defendants argued that the messages lacked the necessary quality of confidence because the subject matter of the messages demonstrates an “iniquity” (that is, a crime, civil wrong or serious misdeed of public importance), relying upon longstanding authority that there is “no confidence as to the disclosure of iniquity” (see Gartside v Outram (1856) 26 LJ Ch 113). This argument was rejected by McGrath J. His Honour reasoned that, while disclosure of the messages might result in “civil repercussions” for the plaintiffs, that “does not mean that those text messages are evidence of a civil wrong, no matter how repugnant, distasteful and objectionable” the content and language of the text messages might be.

In relation to the second element, McGrath J found that there was a serious question to be tried that all of the text messages were imparted in circumstances importing an obligation of confidence. This is because they were private communications between people with a very close and longstanding relationship. McGrath J found that an “obligation of confidence can be implied from the nature of the relationship between the plaintiffs, who were expressing themselves privately.” This obligation also extended to GH, the ABC and Ms Vinall on the basis that they each knew, or ought to have known, that the messages were subject to a pre-existing obligation of confidence. McGrath J rejected the defendants’ argument that the messages were mere “tittle-tattle” and therefore could not be the subject of an action for breach of confidence.

In relation to the third element, there was clear evidence of a threatened unauthorised use of the confidential information by the ABC and that such use would be to the detriment of the plaintiffs.

Given the strength of the prima facie case of breach of confidence and therefore the likelihood that the plaintiffs would be successful in obtaining final relief at trial, the balance of convenience favoured the granting of the interlocutory injunction. Indeed, the defendants did not proffer any countervailing argument as to how they would be prejudiced by the granting of the injunction.

The availability of breach of confidence in this case serves as a useful reminder of the continued importance of the action in filling gaps left by the new statutory tort for serious invasions of privacy in Schedule 2 of the Privacy Act 1988 (Cth). There is little doubt that the threatened disclosure of the text messages would involve a serious invasion of privacy for the purpose of the tort. However, the statutory tort would have required the plaintiffs in this case to establish that the public interest in their privacy outweighed any countervailing public interest, including freedom of the media. Furthermore, the ABC and Ms Vinall would have likely been able to take advantage of the exemption for journalists in cl 15. The public interest in the media’s right to publish is irrelevant to a claim in breach of confidence in Australia – indeed, there is no "public interest" defence and there is certainly no freestanding journalism exemption.

Suppression orders

A suppression order was granted by McGrath J over the text messages themselves. Suppression orders over confidential information are common in breach of confidence cases. The argument is that a suppression order is necessary so the court can do justice between the parties because publication of the confidential information would achieve the very thing that the cause of action invoked by plaintiff is designed to prevent.

McGrath J also granted suppression orders over the identities of each of the plaintiffs and GH. These orders, in the circumstances, are less orthodox. The plaintiffs argued that, if their names were revealed, speculation associated with the case and the context of the text messages, would be potentially more damaging than the revelation to the public of the messages themselves. Such speculation, according to the plaintiffs, would undermine the administration of justice by defeating very the purpose for which the plaintiffs have applied to the court for relief. McGrath J accepted this argument. In circumstances where the plaintiffs have had their confidential information taken from them, had it disseminated to the ABC and used by GH as the basis for threatening AB’s interests, McGrath J said “I need to ensure that as victims of that conduct they receive protection from the court rather than have harm caused to them by revealing their identities” ([64]).

The judgment in AB v Australian Broadcasting Corporation [2026] NSWSC 767 is available from AustLII.