In Short
The Situation: In an era of sophisticated
cyberattacks and data leaks, questions have been raised over
whether the doctrine of legal professional privilege
("LPP") should be extended to provide clients with a
legal right to seek relief, such as an injunction, to prevent a
party from using privileged material obtained in an unauthorized
fashion.
The Result: The High Court of Australia has
unanimously ruled that LPP can only operate defensively as
a right to resist powers for the compulsion of document production
or testimony. It does not give rise to an independent right of
relief and, accordingly, will not come to the aid of a party
affected by a data breach unless some other avenue for relief
exists (such as an obligation of confidentiality).
