I, for one, was devastated when the Daily Mail outed the winner of this season’s The Bachelorette only hours before it aired. Of course, I was almost sure Sasha was going to win – those rugged good looks and that irresistibly cheeky charm. But I wanted to see that magic moment for myself. And I’m pretty sure, romantics across Australia felt the same way.

In the days following the leak, there was much publicity about Channel 10’s urgently sought injunction to stop the leak in the NSW Supreme Court. And, no doubt, to protect the value of the romance that comes with such a hyped finale episode. But now that the dust has settled, and now that Sam and Sasha are officially living in loved-up bliss, and now that the ratings are in, should Channel 10 pursue the Daily Mail for damages?

My view? Based on the limited facts available – no. Although I consider myself a romantic, I am also a lawyer. And my less than romantic reason is as follows. But don’t stop reading just yet – there is a happy ending for the parties involved.

What Exactly Is an Injunction?

So how did Channel 10 get the injunction in the first place? An injunction is an order for someone to do, or not to do, a particular act.

It is common to see injunctions sought by the media where an act or proposed act threatens a privacy right or where the act is likely to constitute defamation. The act is typically in the form of publication. The Court must be satisfied that:

  • there is a serious question to be tried,
  • the plaintiff is likely to suffer injury and damages will not be an appropriate remedy, and
  • the balance of convenience favors granting an injunction.

In this case, Channel 10 sought the injunction, rather than Sasha and Sam themselves (they were too busy canoodling). The serious question to be tried then related to, most likely, an equitable duty of confidence and/or the private nature of the information.

What Can Channel 10 Now do the Injunction has Been Granted and Complied With?

Although I have not seen the Court documents first hand, given the application’s urgency, the injunction was granted on an interlocutory basis. What happened here is that the Court determined that there was a serious question to be tried, but it did not (and this is the important bit), make a final determination as to that question. To do so would take a lot more time and evidence.

So Channel 10’s position is that they have the interlocutory injunction. But they still need to convince the Court on their ‘primary’ application, that is, Daily Mail breached an equitable duty of confidence and/or privacy. And there is, of course, a chance Channel 10 will lose that application. Noting that in making its final orders, the Court will consider other factors including the right to freedom of expression and speech.

What if Channel 10 Lose?

Well, they will have to pay both their legal costs and most of the Daily Mail. And given the case’s nature, those costs will not be cheap. Importantly, Channel 10’s loss will see a precedent established whereby third party publications can leak pictures or information, effectively spoiling the content of another’s show or publication. This certainly won’t be great for future TV series, or the networks generally – let alone the viewers.

What damage has actually been suffered?

With that being said, and the finale episode now a distant memory, it’s necessary to consider the benefit of Channel 10 pursuing the claim beyond the interlocutory orders obtained. Parties will often seek damages, usually in the form of an account of profits or a loss of revenue, hand in hand with the injunction itself.  Channel 10, if successful in its claim against the Daily Mail, may claim lost revenue.

But they didn’t lose any revenue. Instead, Sam choosing Sasha under the shade of a weeping willow tree, telling him of her undying love and that magical kiss and happily ever after was ratings gold for Channel 10. More so than the Bachelor final, and more than anybody predicted. So really, no harm done. And the benefit of pursuing the claim would be nominal. Given these risks, it just doesn’t seem worth it.

***

So while the story was leaked, and while millions across Australia devastatingly had their storybook finale spoilt, there are no real losers in this epic tale. Except maybe Michael.

Emma Jervis

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