It’s Not Defamation. So How Did the ABC Just Get Gagged?
Most people assume that suing for defamation is the only way to stop a media outlet from publishing something about you. A lot of people also think that you can only do so if the story is false.
In July 2026, the Supreme Court of NSW granted an interlocutory injunction restraining the ABC from using, disclosing or reproducing three professional athletes’ private group-chat messages.
In this case, it relied mostly on the equitable doctrine of breach of confidence, rather than defamation law.
Importantly, nobody suggested the messages were fake. Instead, the court restrained threatened use and disclosure pending trial.
That distinction matters because if you assume the only content a court can gag is false content, you might be working from the wrong legal map.
What actually happened in the ABC case
In AB v Australian Broadcasting Corporation [2026] NSWSC 767, three professional athletes, referred to as AB, CD and EF sought to stop the ABC publishing messages from a group chat. Prior to this, they had kept this chat between themselves for around eight years.
According to the athletes’ case, AB’s former partner, referred to as GH, accessed AB’s old phone after their relationship ended. She then obtained screenshots of messages from the chat. GH subsequently allowed an ABC journalist to see those screenshots while she was researching a proposed story.
Justice McGrath granted an interlocutory injunction restraining the ABC from using, disclosing or reproducing the contents of the group chat pending the final determination of the proceedings.
In addition, the court also made suppression and non-publication orders for the athletes’ identities, the ex-partner, the chat contents and key court documents.
The reasoning behind this? Well, if people who seek court protection against the theft or misuse of private information can be publicly identified in the process, many will simply choose not to come forward at all. In turn this would defeat the purpose of the remedy.
Why “it’s true” doesn’t end the analysis
Defamation protects reputation from false statements. However, breach of confidence protects a different interest altogether: your right to control information you shared where the other person thought it was meant to stay private.
Those are separate legal questions, and a court can answer them differently. In this case, the ABC could be restrained from publishing accurate information. This is because the question in breach of confidence is not whether the information is true, but whether it was shared in confidence. Unlike in defamation cases, truth is not a defence.
Justice McGrath applied the traditional three-part equitable test for breach of confidence to the group chat:
The defendants argued the messages were trivial, no more than what they called “tittle-tattle.” However, Justice McGrath rejected that, describing the content as private jokes and comments about other people that were never intended to be disclosed publicly, stating:
“There is no evidence that they have entered the public domain.”
– Justice McGrath, Supreme Court of NSW
defence that didn’t work: “This exposes wrongdoing”
The ABC’s strongest available defence to a breach of confidence claim is the iniquity doctrine. The iniquity doctrine draws a line: confidentiality cannot be used as a shield to hide genuine wrongdoing. If the information reveals a crime, a civil wrong, or serious misconduct that the public has a real interest in knowing about, a court may refuse to protect it.
Justice McGrath found it did not apply here. Applying the test from Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266, he found the messages represented private thoughts and opinions shared between friends. Which are not crimes, civil wrongs or serious public wrongdoings.
Unflattering and crude is not the same as unlawful.
Many people assume a court will only intervene to protect wrongdoing, and assume the reverse, that intervention itself means something must be being covered up. Neither assumption holds. A court can protect private information for no reason other than that it was never meant to be shared.
Journalists are not automatically in the clear
Justice McGrath held that journalists and media organisations can become bound by an obligation of confidence where they receive information they know, or ought to know, was obtained in breach of confidence.
The court found a serious question to be tried that a reasonable person in the position of the journalist and the ABC would have understood the messages to be confidential. Receiving a leak does not wash it clean. Therefore, if a journalist knows the source photographed someone else’s phone without permission, that knowledge can be enough to bind the journalist to the same confidentiality obligation as the person who took it.
What to do
Breach of confidence and privacy-related injunctions sit alongside defamation as separate tools for protecting your reputation and your private information.
If private messages, photos, or information about you have been leaked or are about to be published, or you need advice on what you can lawfully publish about someone else, get advice before anything goes further.
Authored by Stewart O'Connell, Special Council of O'Brien Criminal Lawyers
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Stewart has a reputation for developing a strong tactical approach, achieving excellent outcomes and ensuring that his clients are well informed and supported throughout the process.
Stewart has represented hundreds of people in defamation claims. He was responsible for the highest defamation award in the Northern Territory and a High Court case that changed defamation law by making media companies responsible for comments others made on their social media accounts. He has also represented hundreds of people in civil claims against the police, including at mediation and in trial. He has also been a strong advocate for clients in Royal Commissions, ICAC proceedings and Government Inquiries, and is a highly regarded external academic at the Australian National University.