By: Georgie Austin and Hannah Moore

AB v Australian Broadcasting Corporation [2026] NSWSC 767

Introduction

The New South Wales Supreme Court’s decision in AB v Australian Broadcasting Corporation [2026] NSWSC 767 is an interesting authority on the protection of confidential electronic communications and the availability of interlocutory relief to restrain threatened media publication.

The case arose after private messages exchanged between three professional athletes in a long-standing group chat were accessed by one plaintiff’s former partner (without the plaintiffs’ permission) and subsequently provided to a journalist at the ABC for the purposes of a proposed news story.

The plaintiffs brought proceedings for breach of confidence and sought an interlocutory injunction pending the final determination of the proceedings to restrain the use and disclosure of the information contained in the group chat.

McGrath J held that the plaintiffs had demonstrated a strong prima facie case in breach of confidence, and that the strength of their claim and potential harm they are likely to suffer if their confidential information is disclosed or published, favour equity intervening to provide interlocutory relief. His Honour therefore granted an interlocutory injunction restraining use and disclosure of the group chat messages and made extensive suppression and non-publication orders to preserve the confidentiality of the information pending trial.

The decision provides insight into the treatment of private digital communications, the limits of the “trivial tittle-tattle” and iniquity exceptions, and the circumstances in which the protection of confidential information may justify a departure from the principle of open justice.

The facts

The plaintiffs, identified as AB, CD and EF, were professional athletes who had maintained a private group chat for approximately eight years. The group chat was used exclusively by the three plaintiffs and contained numerous personal communications, including jokes, comments about other people and discussions that were never intended to be disclosed publicly.

AB had previously been in a four-year relationship with GH. Following the breakdown of that relationship, GH gained access to AB’s old mobile and obtained screenshots of messages from the group chat. GH subsequently allowed ABC journalist Marnie Vinall, access to those messages. Ms Vinall then used the material in researching a proposed story for publication by the ABC.

In June 2026, the plaintiff, their sporting clubs and the governing body of their sport received communications from Ms Vinall seeking responses to allegations based on the contents of the messages. The plaintiffs commenced urgent proceedings alleging breach of confidence and seeking interlocutory relief restraining further use and disclosure of the material.

The outcome

McGrath J granted an interlocutory injunction restraining the defendants from using, disclosing or reproducing the contents of the group chat pending the final determination of the proceedings. His honour also made comprehensive suppression and non-publication orders protecting the identities of the parties, the content of the chat and key court documents.

In doing so, the Court found that the plaintiffs had demonstrated a strong case in breach of confidence and that the balance of convenience overwhelmingly favoured preserving confidentiality until trial.

Private group chats can attract equitable protection

A significant aspect of the decision is the Court’s treatment of the group chat messages as confidential information.

McGrath J held that the plaintiffs had established a serious question to be tried as to each element of the equitable action for breach of confidence. The Court found that the messages possessed the necessary quality of confidence because they were private communications exchanged solely between three individuals and had never been disseminated outside the group.

The defendants argued that it is necessary for the plaintiffs to demonstrate, in isolation, that each of the text messages in the group chat has the necessary quality of confidence because it contains confidential information and has sufficient gravity for equity to intervene ([115]). The Court rejected this submission, and found that rather, confidentiality was attached to the communications because they formed part of a private group chat intended only for the participants themselves.

“Trivial Tittle-Tattle” does not defeat confidentiality

The defendants submitted that the contents of the group chat, which it said could only be characterised as “trivial tittle-tattle”, was not the sort of information which equity would intervene to protect. Counsel likened the messages to phrases such as “I like blue” and “I prefer purple” to suggest that the information conveyed did not have the requisite quality of confidence, nor was the confidential quality specifically identified, so as to ground an action for breach of confidence ([89]).

McGrath J rejected this characterisation. His honour found that, given the nature of the information and the potentially serious consequences that arise from publication of the messages, they could not properly be described as either “trivial” or “tittle-tattle”.

Of significance, the Court observed that the defendants’ own position was inconsistent. On the one hand, they argued that the messages were trivial; however, on the other hand, they relied upon the alleged significance of the messages to justify disclosure and publication.

The decision reinforces that private communications will not necessarily lose confidential protection simply because they may contain offensive content or personal commentary.

Iniquity argument rejected

McGrath J held that the messages represented private thoughts and opinions shared between friends, and did not disclose the type of crime, civil wrong or serious public wrongdoing required to engage the iniquity doctrine, that arises from Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266. His honour therefore rejected the defendants’ submission that the messages were sufficient to engage the iniquity doctrine.

Further, the Court accepted the plaintiffs’ submission that any disciplinary or contractual consequences would arise only if the messages entered the public domain, and that publication itself could not be relied upon to justify destroying the confidentiality otherwise attached to them.

Journalists may be subject to obligations of confidence

The decision also contains observations regarding third-party recipients of confidential information.

It reinforces that journalists and media organisations may become subject to obligations of confidence where they receive information they know was obtained or communicated to them in breach of confidence, which can be inferred from the nature of the information and / or the circumstances in which it was communicated.

McGrath J found that there was a serious question to be tried that a reasonable person in the position of Ms Vinall and the ABC would have understood the communications to be confidential. His Honour relied in part, on Ms Vinall’s own descriptions of the material as “the private conversation” and “private text messages”.

It was further found that there was a serious question to be tried that the ABC and Ms Vinall had already used the confidential information by reviewing, photographing and disseminating extracts of the messages while researching their proposed story.

Suppression orders and open justice

McGrath J held that suppression orders were necessary, as the publication of confidential material would destroy the very subject matter of the proceedings before trial. His Honour concluded that it was necessary to supress the identities of the plaintiffs and GH and reasoned that public identification would undermine the administration of justice, by discouraging subjects of the theft or misuse of confidential information from seeking judicial protection.

Conclusion and next steps

AB v Australian Broadcasting Corporation confirms that private group chat communications can attract equitable protection, even where the content is informal, offensive or potentially embarrassing.

The decision demonstrates the willingness of courts to intervene where confidential information may have been obtained through improper or surreptitious means and is threatened with publication, particularly where the absence of intervention would destroy the very reason for the claim, which is to protect the information from such disclosure.

McGrath J ordered that the plaintiffs file and serve a statement of claim by 21 July 2026 and the defendants file and serve a defence by 18 August 2026.

The proceedings are listed for further directions before the Registrar in Equity on 25 August 2026.

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