By Emmanuel Giuffre, former Voiceless Legal Counsel and Rosie Phillip, former Voiceless Legal Intern

Citation: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63

Court – High Court of Australia
Judges – Chief Justice Gleeson, and Justices Gaudron, Gummow, Kirby, Hayne and Callinan
Date of Judgment – 15 November 2001 

In November 2001, Lenah Game Meats Pty Ltd (the respondent), sought an injunction from the High Court to restrain the Australian Broadcasting Corporation (ABC) (the appellant) from broadcasting footage of its possum meat production processes on the basis that such footage was unlawfully obtained from an anonymous source.

The case raises novel questions as to the legality of publishing materials that are known to have been unlawfully obtained, and the extent to which media outlets can be restrained from publishing such materials, notwithstanding that there was no illegality on the part of the media outlet.

In a win for animal activists and civil rights, the majority of the High Court found in favor of ABC by rejecting Lenah’s argument and held that the interlocutory relief was unavailable to Lenah.

FACTS OF THE CASE

Lenah Game Meats Pty Ltd (Lenah) operated a possum meat processing plant in Tasmania. Unknown individuals unlawfully entered Lena’s premises and installed hidden cameras without Lenah’s knowledge or consent.

The hidden cameras were used to capture footage depicting the possum slaughter process. The footage was being supplied to Animal Liberation Ltd, who later passed the footage on to the ABC.

On becoming aware of the ABC’S plans to broadcast the footage on the current affairs program, the 7:30 Report, Lenah sought an interlocutory injunction to restrain the broadcast. While the ABC was not involved in the trespass or the installation of the surveillance equipment, it was aware that the footage had been obtained unlawfully, at least after ABC’s application to the court.

ARGUMENTS

Lenah argued that publication of the film would cause it financial harm.¹ It also argued the footage depicted some of the most gruesome parts of the processing operation and it was likely to arouse public distress and anger.² In essence, Lenah made three allegations:

• the slaughtering operations were confidential and broadcasting the footage would be a breach of confidentiality;
• the material had been obtained as a result of trespass and due to the unconscionability of this act, the court should restrain this material from being published or broadcasted; and
• the publication or broadcasting of such material would amount to an invasion of Lenah’s privacy.³

The ABC contended that Lenah had no cause of action against it, in that there was no principle in Australian law which would justify an order preventing the publication or broadcasting of material that had come into its possession, irrespective of how that material was derived by a third party.

HIGH COURT OF AUSTRALIA JUDGMENT

The majority of the High Court found in favor of ABC by rejecting Lenah’s argument and held that the interlocutory relief was unavailable to Lenah.

Confidentiality

On the issue of confidentiality, Gleeson CJ held that filming activities on private property does not deem the activities filmed as ‘a private act’. The activities were not private in any other sense except that they were on private property. Gleeson CJ relied on the ABC’s concession that information about the slaughtering process was not confidential, and accordingly, as a licenced public authority, the appellant could not succeed in a claim based on breach of confidence.⁴

Unconscionability

On the point of unconscionability, the majority of the High Court found that the mere fact that footage was obtained improperly in the first place did not taint the use and publication of the film for every other person into whose hands the film may fall. In making this argument, Chief Justice Gleeson referred to United States’ case law.⁵

In a joint judgment, Gummow and Hayne JJ found that there was no power to issue an injunction without an underlying cause of action.⁶ In regard to the assertion by Lenah that it would be ‘unconscionable’ to enable the publication of the material, Gummow and Hayne JJ held it is ‘inequitable’ and ‘against good conscience’ for the maker of the film to assert ownership of the copyright against Lenah and to broadcast the material; however, this is not the issue in the present matter as the maker of the film was not the ABC. The trespassers’ act of trespass is a distinct act from wrongdoing by misusing the video recording.⁷

Gaudron J agreed with Gummow and Hayne JJ, and held that there is no statutory provision which authorizes the grant of an order restraining publication in which the ABC obtained material in the circumstances where such material was improperly or illegally obtained.⁸ Gaudron J also noted that no equitable or legal right would be infringed, nor any equitable or legal wrong involved, in the publication of the material by the ABC. As such, Gaudron J held that there would be no legal or equitable remedy available to Lenah, including an injunction.⁹

Privacy

Since Victoria Park Racing and Recreation Grounds Co Ltd v Taylor,¹⁰ it had been well established that a cause of action for breach of privacy did not exist in Australia. An individual’s privacy could be defended by reference to other laws, such as those relating to defamation, nuisance and trespass. But a general right to privacy does not exist in Australia.

In this case, however, the High Court indicated that in the future, it may be receptive to arguments that a right to privacy could be recognised.¹¹ Significantly, Gummow and Hayne JJ held that the decision in Victoria Park did not necessarily stand in the way of the development of such a law.¹² Kirby J postponed addressing this issue but indicated that such a cause of action may be a possibility.¹³

However, four of the six judges were inclined to the view that, if a new action for the invasion of privacy was developed in Australian law, it should be limited to protection of the privacy of a natural person (as opposed to a company or similar body).¹⁴ Gleeson CJ suggested that such a limitation should be based on the fact that the law is designed to protect human dignity and that becomes less relevant when dealing with the privacy of an organisation.¹⁵

Kirby on freedom of political communication and animal welfare

Of significant importance to the animal protection movement, Kirby J acknowledged that animal welfare issues are legitimate matters of public debate and noted the importance of public interest groups in raising awareness of these issues and of generating public debate in Australia.  Importantly, Kirby J reinforced the view that such debate should be protected:

“The concerns of a governmental and political character must not be narrowly confined. To do so would be to restrict, or inhibit, the operation of the representative democracy that is envisaged by the Constitution. Within that democracy, concerns about animal welfare are clearly legitimate matters of public debate across the nation. So are concerns about the export of animals and animal products. Many advances in animal welfare have occurred only because of public debate and political pressure from special interest groups. The activities of such groups have sometimes pricked the conscience of human beings.

Parliamentary democracies, such as Australia, operate effectively when they are stimulated by debate promoted by community groups. To be successful, such debate often requires media attention. Improvements in the condition of circus animals, in the transport of live sheep for export and in the condition of battery hens followed such community debate. Furthermore, antivivisection and vegetarian groups are entitled, in our representative democracy, to promote their causes, enlisting media coverage, including by the appellant. The form of government created by the Constitution is not confined to debates about popular or congenial topics, reflecting majority or party wisdom. Experience teaches that such topics change over time. In part, they do so because of general discussion in the mass media.”¹⁶

1. [2001] HCA 63, 79.
2. Ibid n 1, 78.
3. Ibid n 1, 79.
4. Ibid n 1, 35.
5. Bartnicki v Vopper 532 US 514 (2001).
6. Ibid n 1, from 91.
7. Ibid n 1, 104.
8. Ibid n 1, 61.
9. Ibid n 1, 62.
10. (1937) 58 CLR 479.
11. Ibid 1, 35.
12. Ibid n 1, 107.
13. Ibid n 1, 191.
14. Ibid n 1, 43; 132; 189.
15. Ibid n 1, 43.
16. Ibid n 1, at 217, 218.