Dialogue Consulting Pty Ltd v Instagram, Inc (No 2) [2021] FCA 1322

Dialogue Consulting Pty Ltd v Instagram, Inc (No 2) [2021] FCA 1322

Although there has been a material change in circumstances (the US permanent injunction, the FTC order, and the Instagram Content Publishing API), it is not in the interests of justice to disturb the status quo and vary the injunction. The risks and prejudice to Dialogue if the variation was made outweigh any asserted or actual risks to the respondents in keeping the current order; the respondents have not discharged their onus to justify the variation, and the balance of convenience and comparative prejudice favour Dialogue. Accordingly, the application to vary the injunction is refused.

Jurisdiction
Australia
Judgment Date
27 October 2021
Procedural Posture
Interlocutory Application in Commercial/corporations Proceeding / Interlocutory (application to Vary Injunction)
Outcome
Respondents' interlocutory application to vary the injunction refused. Costs to applicant.
Legal Topics
['interlocutory Injunction' 'variation of Injunction' 'balance of Convenience' 'protection of User Data' 'competition' 'discretionary Considerations']
['corporations Law' 'commercial Law'] ['interlocutory Injunction' 'variation of Injunction' 'balance of Convenience' 'protection of User Data' 'competition' 'discretionary Considerations']

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Procedural Posture

Interlocutory Application in Commercial/corporations Proceeding / Interlocutory (application to Vary Injunction)

Legal Issues

  1. 1 ['Whether there is a material change in circumstances justifying the variation of the injunction' 'Whether the interests of justice require variation of the injunction' 'Risks of prejudice to parties if injunction is or is not varied']

Ratio Decidendi

Although there has been a material change in circumstances (the US permanent injunction, the FTC order, and the Instagram Content Publishing API), it is not in the interests of justice to disturb the status quo and vary the injunction. The risks and prejudice to Dialogue if the variation was made outweigh any asserted or actual risks to the respondents in keeping the current order; the respondents have not discharged their onus to justify the variation, and the balance of convenience and comparative prejudice favour Dialogue. Accordingly, the application to vary the injunction is refused.

Court Disposition

Respondents' interlocutory application to vary the injunction refused. Costs to applicant.

Orders

  • ["The respondents' interlocutory application seeking a variation of the injunction made on 17 May 2019 be refused." "The respondents pay the applicant's costs of and incidental to their application."]