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In August 1937, the High Court handed down its decision in Victoria Park Racing and Recreation Grounds Ltd v Taylor.[1] The case as often been cited as authority for denying the existence of a common law right of privacy in Australia. However, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[2] decided in November last year, the High Court pointed out that Victoria Park Racing was not actually a case about maintaining privacy. Rather, Victoria Park was concerned with allocating the right to appropriate and control how information can be made public. The High Court in Lenah Meats left open the possibility of a tort of unjustified invasion of privacy, but suggested that any such protection could not be achieved simply by extending equitable notions of unconscionability or as an incident of the rights of property, would not be available to corporations, and may be limited by the emerging constitutional protection of freedom of communication. But whether there remains any significant role for a tort of privacy, and how any such tort relates to protecting confidential information or equitable ownership of copyright—causes of action that were explicitly not argued before the Court—remains unclear.
On 4 May 1999 the Australian Broadcasting Commission ('ABC'), during its '7.30 Report' program, broadcast a segment of a video showing possums being stunned and having their throats cut. The footage was apparently provided to the ABC by a group called Animal Liberation Limited. It appeared that the footage had been originally obtained through hiding a video camera inside the ceiling of an abattoir owned by Lenah Game Meats Pty Ltd ('the respondent') with two small holes made in the ceiling to gain a view of the possums being killed. There was no other evidence of who had hid the video camera though there was a suggestion that it might have involved breaking-in to the building. Clearly the filming had involved trespassing on the respondent's property, but it was not alleged that the ABC had anything to do with the trespass or any other unlawful act associated with gaining the footage. The ABC had informed the respondent of the footage during an interview prepared to accompany the broadcast of the footage.
The broadcast had followed an unsuccessful application for an interlocutory injunction by the respondent in the Tasmanian Supreme Court,[3] and was in turn followed by a successful appeal and the granting of an interlocutory injunction by the Full Court.[4] The ABC then brought an appeal to the High Court, seeking to have the interlocutory injunction lifted. Even though there had been a small segment of the video already shown, the ABC wished to remove the injunction to allow it to broadcast more extensive segments in the future. There was a suggestion in the hearing before the High Court that the matter had not been brought on for trial because the interlocutory proceedings were not yet finalised.
The issues before the Court primarily resolved to three: 1) whether the Tasmanian Supreme Court had the power to issue an interlocutory injunction in this case without the identification of an underlying common law or equitable cause of action, 2) whether invasion of privacy might provide such a cause of action and was available to corporations such as the respondent, and 3) whether any restriction on the right of the ABC was consistent with the constitutional protection of political communication. Other issues, such as whether there was any breach of confidentiality or a question of the equitable ownership of copyright in the film, were conceded or not raised by the respondent in seeking the injunction and therefore not substantively considered by the Court.
The Commonwealth Attorney-General intervened to present submissions on questions of the general law, asserting a special interest in the principles that apply to the use of information taken from the Commonwealth and the acquisition of information for Commonwealth purposes. The Commonwealth's submissions asserted that a court of equity had the jurisdiction to enjoin the use of information obtained by illegal or otherwise improper means, if use of the information would be unconscionable, and a third party may be enjoined from using that information. Leave to intervene was granted but these submissions were dealt with in the course of responding to the issues raised by the parties to the dispute.[5]
The majority of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ (Callinan J dissenting) allowed the appeal and declined to issue an injunction. Gummow and Hayne JJ wrote a joint judgment holding that there was no power to issue an injunction without an underlying cause of action. They declined to rule out the existence of a tort of unjustified interference with privacy but decided that '[w]hatever development may take place in that field will be to the benefit of natural, not artificial persons'[6] and hence was not available to the respondent as a corporation. That made it unnecessary to discuss the impact of the constitutional protection of political communication. Gaudron J agreed with the judgment of Gummow and Hayne JJ and made only some short observations on the nature of injunctive relief. Gleeson CJ agreed with the discussion of the relevant principles for the grant of an interlocutory injunction by Gummow and Hayne JJ. He held that the material in question was not private in the relevant sense and could not found an injunction.
Kirby J held that the establishment of a cause of action was not, as a matter of law, required for the grant of an interlocutory injunction.[7] There may be a sufficiently serious question to be tried to justify the grant of the injunction even if the final cause of action was not yet determined. He also agreed with Callinan J that an injunction could be granted to restrain the enjoyment of information unlawfully obtained where the use of such information would be unconscionable.[8] He refrained from reaching any final conclusions on the availability of a right of privacy.[9] However, the exercise of discretion involved in the grant of an interlocutory injunction had to give proper weight to the constitutional protection of political communication on matters such as the issue of animal welfare involved in this case. The injunction should therefore not have been granted.
Callinan J dissented, holding that 'an item of valuable property obtained in violation of a person's proprietary right to exclusive possession in circumstances in which the defendant knows or ought to know of the violation, is to be regarded as unconscionably obtained and to be delivered up on demand to the person whose rights have been violated'.[10] He tentatively concluded that the time is ripe for consideration of a tort of invasion of privacy in Australia,[11] and did not rule out the possibility that in some circumstances it may be enjoyed by corporations. He also considered that protecting the intended broadcast would amount to a considerable, and unacceptable, expansion of the constitutional protection of political communication.[12]
Section 11 of the Supreme Court Civil Procedure Act 1932 (Tas) gives the Tasmanian Supreme Court the power to issue an interlocutory injunction 'in all cases in which it shall appear to the Court or judge to be just and convenient'. This section was used by the respondents to argue that the power of the court to grant an interlocutory injunction was not dependent on the identification of an independent ultimate cause of action. As the Full Court of the Tasmanian Supreme Court had agreed, the respondents argued that an injunction may issue on the basis that that the conduct in question is 'unconscionable'.[13]
However, a majority of the High Court disagreed with this interpretation.[14] Section 11 is based on s 25(8) of the Supreme Court of Judicature Act 1873 (UK) ('the Judicature Act') which in turn has been accepted as being based on the principles of injunctions developed prior to its enactment.[15] While the principles of injunctions may be developing, particularly as a remedy accompanying the developments in other areas of the general law, the grant of an injunction still required the existence of an underlying cause of action that could ground final relief.[16]
Where proceedings are interlocutory in nature, the courts have generally required that there is a serious case to be answered and the balance of convenience favours the grant of an injunctive relief.[17] However, as Gummow and Hayne JJ required:
[W]here interlocutory relief is sought in a judicature system court, it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature.[18]
Thus, s 11 does not empower the court 'to do justice according to idiosyncratic notions as to what is just in the circumstances'.[19]
As Gleeson CJ and Gaudron J suggested, the power to issue an interlocutory injunction may be seen as an example of the power of the court to protect the integrity of its processes.[20] This is one of the motivations for requiring, in the absence of statutory or other special circumstances such as when seeking mareva injunctions, that an interlocutory injunction requires that there is a serious question to be tried or a prima facie case to be made out. However, a need to protect the court's processes would only arise if it were arguable that there was some entitlement to final injunctive relief to prevent the broadcast of the footage. Therefore, the need to preserve the subject matter of the dispute through interlocutory injunction resolves back to the requirement for a legal or equitable cause of action entitling final relief.[21]
Kirby J, however, suggested that the power to grant an injunction in s 11 should not be read down through 'presuppositions derived from pre-existing law'.[22] The power of the court is expressed in broad terms and of an equitable character with subsequent reluctance to be restricted to inflexible rules. It is also interlocutory in nature and hence should be exercised with caution, but need not require identification of the precise question that is to be tried at final hearing. Kirby J appears to have assumed that the final hearing will be expeditiously pursued in exercising the discretion to grant the interlocutory injunction.
There did not appear to Callinan J to be
any strong reason, in principle, modern authority or the interests of justice, why an injunction, without more, should not be granted to restrain the enjoyment of property unlawfully obtained, certainly when the person sought to be enjoined knows or ought reasonably to know of its illegal genesis.[23]
Callinan J, however, ultimately bases his judgment on the presence of a cause of action for unconscionability.[24]
The requirement that there be a cause of action leads to the question of whether some form of unconscionability is sufficient. Gummow and Hayne JJ agreed[25] with Dixon J in Victoria Park that:
[C]ourts of equity have not in British jurisdictions thrown the protection of an injunction around all the intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business of undertaking or the use of ingenuity, knowledge, skill or labour.[26]
This aspect of Victoria Park has lead to subsequent decisions denying any general action of unfair competition in Australia. It has also been used in support for 'the development and adaptation of recognised forms of action to meet new situations and circumstances' rather than the attempt to identify 'a unity of underlying principle' upon which to base a new general cause of action.[27] As Deane J stated in Moorgate Tobacco Co Ltd v Phillip Morris Ltd [No.2][28] there is no cause of action 'whose main characteristic is the scope it allows, under high-sounding generalizations, for judicial indulgence of idiosyncratic notions of what is fair in the market place'.[29]
Therefore a final injunction will not issue merely because, as cases such as Lincoln Hunt Australia Pty Ltd v Willesee[30] have suggested, the conduct to be prevented might for some reason be considered 'unconscionable'.[31] Gummow and Hayne JJ (with Gaudron J's agreement) declined to entertain the establishment of a new cause of action due to the unconscionability of the conduct in question, and therefore go on to consider the only alternative ground of relief argued on appeal, namely the development of a right of privacy. Gleeson CJ similarly refuses to allow unconscionability to extend the scope of the property rights of the respondent.[32]
The question before the Court was whether there are sufficient bounds to any new cause of action based on unconscionability that can be established by principle. There were at least three separate bases for a principled limitation to the notion of unconscionability argued before the Court: the damage that may be caused to the respondent by broadcasting the material gained; the way in which the footage was obtained and the constructive knowledge of that method, ie through interference with property rights; and the way in which commercial advantage was taken of another's wrongdoing.[33]
Callinan J drew, in various ways, on all three in deciding that the conduct of the appellant is unconscionable and therefore can provide a basis for final relief. He suggested an item
of valuable property obtained in violation of a person's property proprietary right of exclusive possession in circumstances in which the defendant knows or ought to know of the violation, is to be regarded as unconscionably obtained and to be delivered up on demand to the person whose rights have been violated.[34]
Callinan J's conclusions therefore appear largely be limited to the unusual facts of this case: a new item of property (ie the video tape[35]) has been created that has value in being broadcast but also has value in not being broadcast so as to suggest that it was obtained without permission.
Callinan J drew various analogies to justify his conclusion. He suggested that as an item of property that came into existence in infringement of the respondent's right of exclusive possession it is analogous to stolen property, and the appellants can therefore be compared with a receiver of stolen property, being in that sense complicit.[36] As a receiver of the property the appellants are also presented in a relationship with the respondents that should be regarded as 'a relationship of a fiduciary kind and of confidence' in circumstances to which equity should attach a constructive trust.[37] Allowing an injunction to issue in this case is therefore consistent with those situations that Callinan J posited as illustrations.
The difficulty, however, is that each of these cases can be distinguished on the basis of the nature of the information in question or the authority by which that information is obtained. The question of whether the footage can be treated in the same way as stolen property is perhaps the most crucial element in the case. But as the footage was expressly identified as not being confidential, the basis of treating it as property is unclear. Callinan J suggested that 'it may be that the creator of a spectacle has property rights in respect of it but it is unnecessary to decide whither that is so in this case'.[38] But without this, it is difficult to see what item of value may so constitute property. The equipment on which the footage was shot presumably belonged to the trespassers. The fact that the respondents will suffer damage, and the appellants arguably gain a commercial advantage, from the footage being broadcast does not in itself give rise to protection as the property of the respondents. The footage is therefore different from the stolen money in Black v S Freedman & Co,[39] and the bud-wood of a special nectarine tree in Franklin v Giddins.[40] The question of equitable ownership of the copyright in the footage was raised by Gummow and Hayne JJ, but not discussed, as it was not raised by the respondents. This is discussed further below.
Similarly, the broadcast of the footage would not in itself constitute the unauthorised actions of another. Thus in Donnelly v Amalgamated Television Services Pty Ltd[41] a broadcast of embarrassing footage initially lawfully obtained by police during an arrest was enjoined. The serious abuse by the police of their powers under a search warrant and/or arrest only occurred when the footage was provided to others to be broadcast, and the knowing participation by the broadcasters in that abuse provided grounds for relief. Similarly, unauthorised publication of information obtained under discovery[42] or through an obligation of confidence[43] itself constitutes a breach of the authority or the relationship under which the information was obtained. Here, the trespass and other tortious acts had already been committed and were separate from, even though necessary for, any subsequent broadcast.
Perhaps the case that comes closest to the facts presented in this case is Lincoln Hunt Australia Pty Ltd v Willesee.[44] Lincoln Hunt was heavily relied on by the respondents in their argument and by Callinan and Kirby JJ in reaching their conclusion that there is power to issue an injunction where the broadcast has been unlawfully obtained. Lincoln Hunt involved footage obtained by a TV crew inside the public lobby of a business the TV station was investigating. Young J was prepared to accept that the lack of permission to take the footage could found an action in trespass. He stated that the Court in equity had to power to 'grant an injunction in the appropriate case to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved'[45] but that 'the Court will only intervene if the circumstances are such to make publication unconscionable.'[46] He suggested that '[w]hat is unconscionable will depend to a great degree on the court's view as to what is acceptable to the community as decent and fair at the time and in the place where the decision is made.'[47] Young J therefore argued primarily by way of analogy with obligations of confidence and discovery and by discussion of various United States cases, but ultimately relied on his view that there was 'a lot to be said in the Australian community [in the circumstances of that case] ... that an injunction should seriously considered.'[48] However, as damages and particularly exemplary damages would be an acceptable remedy in that case he refused to issue the injunction.[49]
Lincoln Hunt has been relied upon in a number of subsequent cases.[50] Each involved journalists committing an act of trespass. In only one, Emcorp Pty Ltd v Australian Broadcasting Corporation,[51] was an injunction granted and then arguably because it was considered that the footage was misleading and broadcast may have constituted the tort of injurious falsehood. In each, the unconscionability at the basis of Lincoln Hunt was accepted without significant further elaboration of the principles behind such a finding. Therefore, unless it is accepted that an injunction is available whenever it is considered by the courts to be 'acceptable to the community as decent and fair at the time and in the place where the decision is made' the principles underlying the issue of an injunction against the trespassers themselves remain unclear.
It is therefore difficult to determine the degree to which Lincoln Hunt supports an extension of unconscionability to apply to other than the trespassers in question. Similarly, knowing that the footage had been obtained without permission has not, in the past, been sufficient to establish complicity in trespass or other criminal activity, particularly when the action is likely to highlight the conduct in question.[52] While it may be inferred that the trespass was carried out for the purpose of the ultimate broadcast of any footage obtained, all judges of the High Court accepted that there was no complicity on behalf of the appellants. Therefore, extending any action against the trespassers to the appellants involves establishing an additional element of unconscionability without apparent precedent.
All of the judges discuss changes to society and particularly the operations of the modern media, but it is perhaps only Kirby J who used those changes to argue for an extension of the availability of injunctive relief to these circumstances. As Kirby J suggested:
The phenomena of "cheque-book journalism", intrusive telephoto lenses, surreptitious surveillance, gross invasions of personal privacy, deliberately deceptive "stings" and trespass onto land "with cameras rolling" are mainly phenomena of recent times.[53]
However, the range of activities now common to the modern mass media highlights the difficulty of providing a principled basis for equitable relief. As Kirby J went on to suggest:
To remain relevant to meet the new situations presented by the operations of modern media obtaining and using the fruits of criminal and wrongful acts of others, equity is capable of adaptation. Special considerations govern the provision of injunctive relief where the information in question concerns the activities of public bodies or governmental information. In such cases it is necessary for courts to wear "different spectacles". However, in respect of other information, in determining whether its use would be unconscionable, a court would be obliged to take into account all of the circumstances of the case including competing public interests. Such public interests include both upholding the integrity of private property and personal rights and defending freedom of speech and expression.[54]
He concluded that the Supreme Court has the 'statutory power to grant an injunction to restrain the use of information which has been obtained by a trespasser or by some other illegal, tortious, surreptitious or improper means where the use of such information would be unconscionable.'[55] Obtaining the information through improper means is therefore not enough to warrant an injunction preventing release of the information, and unconscionability seems to require an examination of the various competing public interests. How those interests are to be weighed is only illustrated by Kirby J through holding that power existed to grant the interlocutory injunction in this case. However, by declining to issue the injunction as a matter of discretion due to not adequately considering the constitutional freedom of political communication, Kirby J implied that unconscionability, at least as a ground for establishing the power to grant injunctive relief, is not a difficult additional hurdle to overcome.
The majority of the Court refused to grant an interlocutory injunction without a ground of final relief, and the unconscionability of the conduct in question could not provide such a ground. They therefore considered whether a more expansive right of privacy, or a tort of unjustified interference with privacy, could be developed.
Victoria Park Racing has often been cited for support of the proposition that a cause of action for breach of privacy does not exist in the common law of Australia.[56] The case concerned a racecourse owner attempting to prevent the broadcast of the races, the call made from a tower overlooking the racecourse. The Court declined to grant the injunction. The case has many important parallels with Lenah, but most importantly the majority held that there was no cause of action argued that could provide the basis for a permanent injunction. There was no copyright in a 'spectacle', the information was not confidential, and there was no nuisance in using adjoining land in a way that affects the profitable conduct of a business but doesn't interfere with any right inherent in the ownership of property. As discussed above, an injunction will not always protect 'intangible elements of value, that is, value in exchange.'[57]
As the various members of the Court in Lenah pointed out, the finding of the Court was not based on denial of any tort of unjustified invasion of privacy. Gummow and Hayne JJ quoted Professor W L Morison as having correctly observed:
The plaintiff in the case was a racecourse proprietor [which] was not seeking privacy for [its] race meetings as such, [it] was seeking a protection which would enable [it] to sell the rights to a particular kind of publicity. [Its] sensitivity was 'pocket book' sensitivity. ... The independent questions of the rights of a plaintiff who is genuinely seeking seclusion from surveillance and communication of what surveillance reveals, it may be argued, should be regarded as open to review in future cases even by courts bound by the High Court decision.[58]
Victoria Park therefore may be generally interpreted as an attempt to extend property rights to include controlling the distribution of information generated by use of that property. As Callinan J pointed out,[59] Dixon J in Victoria Park drew a distinction between the facts of Victoria Park and other cases where there was actual entry onto the property of the applicant for relief.[60] The denial of injunctive relief was largely based on a lack of any physical interference with the physical elements of the property. Victoria Park left open the question of whether such interference was enough to give rise to protection, or whether a separate element of privacy would be needed.
Privacy is directly protected in several other common law jurisdictions. The requisite and degree of protection, however, varies and is complicated by the existence of statutory and constitutional requirements. In Lenah, the Court was directed to cases in the United States, the United Kingdom, Canada and New Zealand as support for the development of a tort of privacy in Australia. While a majority of the Court accepted that a tort of privacy might be developed in the future, the nature of privacy protection and its relationship with existing causes of action was not made clear.
As Gleeson CJ suggested:
There is no bright line which can be drawn between what is private and what is not. ... An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.[61]
The requirement that disclosure or observation be highly offensive to a reasonable person refers to the position in the United States as well as a number of interlocutory decisions of the New Zealand High Court.[62] It has been generally recognised in the United States that privacy can be interfered with in four arguably distinct ways:
1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs;
2. Public disclosure of private facts about the plaintiff;
3. Publicity which places the plaintiff in a false light in the public eye;
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.[63]
The Restatement (Second) of Torts[64] qualifies protection against intrusion upon the plaintiff's private affairs by requiring that the intrusion would be highly offensive to a reasonable person. Similarly, the disclosure of private facts is prevented only where it would be highly offensive to a reasonable person, and is not of legitimate concern to the public. This reference to the assessment of the reasonable person reflects the distinct interests involved in the ways privacy may be interfered with. As Gummow and Hayne J suggested, publicity placing the plaintiff in a false light and appropriation of the plaintiff's name or likeness are likely to affect the commercial interests of the plaintiff. However, protection from the disclosure of private facts and unreasonable intrusion upon seclusion is apparently based on other, non-commercial, concerns. It is these two aspects of the United States tort of privacy protection that the respondents relied on in Lenah.
As discussed above in relation to unconscionability, there are various aspects of the circumstances in Lenah that may be involved in considering the reasoning of a reasonable person about whether the footage to be protected was private: the damage or affect on the respondents if the information was released, the way in which the footage was obtained through trespass and the obviousness of the trespass to the appellants,[65] and the interest of others in the use of the information.
Gleeson CJ, however, 'did not give any express consideration of whether a reasonable person would consider broadcast of footage that is obviously taken by a trespasser to be offensive. He concluded that the information about how possums are slaughtered was not private in any sense other than it was carried out on private property.[66] The tortious way in which the footage was obtained also did not make the information private.[67] In other words, it must be something in the nature of the information itself that its disclosure would be considered offensive to others. He considered it unnecessary to consider whether a corporation can invoke privacy, but suggested that some forms of corporate activity, such as director's meetings and internal corporate communications, may be no less private than those of a partnership or individual. But information particular to an individual that is not dependent on property right, such as health, personal relationships, or finances, he suggested, easily identified as private. As Gleeson CJ suggests, the foundation of much of what is protected as private is human dignity.[68]
Gummow and Hayne JJ, with whom Gaudron J agreed, also considered the guises of privacy that can be protected in the United States. They pointed out the need for caution in drawing analogies with decisions that may be based to some degree on the zone of privacy located in the penumbras of specific guarantees in the Bill of Rights. However, if adopted, the protection against the disclosure of private facts and unreasonable intrusion upon seclusion relied upon by the respondents would reflect a 'fundamental value of personal autonomy.'[69] As a corporation, the respondent 'lacks the sensibilities, offence and injury to which provide a staple value for any developing law of privacy'.[70] It can't feel humiliation and intimate personal distress as a result of intrusive behaviour. Gummow and Hayne JJ therefore concluded that privacy is not to be used to protect information because it has value to the corporation if not disclosed to others.[71] Although not explicitly considered in their judgment, limiting privacy to the protection of values intrinsic to natural rather than artificial persons in turn suggests that there are limits on the type of information that can be protected.
Because Kirby J held that the establishment of a cause of action is not essential to the issue of an interlocutory injunction and that unconscionability can provide a ground for equitable relief, he did not have to consider whether a tort of privacy existed or should be developed in Australia. He refrained from considering whether a corporation was entitled to any protection of privacy because of the doubts raised in cases dealing with privacy and the privilege against self-incrimination as a protection of human dignity and self-expression.[72] He also pointed out that Art 17 of the International Covenant on Civil and Political Rights[73] appears to relate only to the privacy of the human individual.[74] Later, in weighing the impact of the freedom of political communication, Kirby J used examples of protection of privacy involving personal embarrassment or physical impairment. However, without further consideration of the interpretation of Art 17 and the congruence between the nature of privacy and other privileges that have been denied corporations, Kirby J's distinction between the protection of privacy and the unconscionability of broadcasting the footage due to the way in which it was procured provides the only indications of what may be considered private.
It was also not necessary for Callinan J to reach a conclusion on the availability of relief based on an intrusion upon privacy, but he offered his tentative views. Much of his analysis is based on the protection that may be offered through extending property rights. Thus he considered that '[i]t may be that the time is fast approaching, indeed it may have already arrived, for the recognition of a form of property in a spectacle'[75] He pointed out that a right of privacy has been recognised in various jurisdictions, but he would not rule out that in some circumstances 'a corporation might be able to enjoy the same or similar rights to privacy as a natural person'.[76] He considered that, if a tort of intrusion into seclusion were recognised, then it would be prima facie satisfied by an unlawful intrusion upon the property of the respondent with film obtained as a consequence.[77] Thus Callinan J suggested that privacy is closely aligned with property rights, and the manner in which the information was obtained may be sufficient to give rise to privacy protection. He did not directly discuss the extent to which privacy may go beyond this.
It therefore appears from the judgments of a majority of the High Court that any development of the tort of privacy would be based on the nature of the information considered private as distinct from the manner in which that information was obtained. Therefore, unlike the respondent's action of unconscionability, it is not dependent on the extension of property rights of exclusive possession, and is seemingly not dependent on the purpose behind the disclosure of the information. It is unclear whether the fact that the information could only have been obtained by trespassing and that it is of general interest to the public would be factors in determining the nature of the information in question.
As the development of the tort of privacy in other jurisdictions has demonstrated, ultimate protection of privacy is qualified by considerations of the protection given to expression or publication of matters of public interest. There appears to be an apparent conflict between preventing expression on the basis of the impact on privacy, and encouraging access to information and public debate. This conflict, it was argued by the appellants, qualified any protection given to the footage in question. They argued that any interpretation of the power to grant an injunction or developments in the common law had to consider cases such as Lange v Australian Broadcasting Commission[78] that had recognised an implied freedom of political communication in the Constitution.
As Gummow and Hayne JJ, with the agreement of Gaudron J, concluded that there was no development of the common law that could found relief in this case, they did not consider the application of the freedom of political communication cases. Gleeson CJ referred to the constitutional freedom as a possible qualification of the extent to which confidentiality may apply in similar circumstances.[79] He cautioned that concepts such as unconscionability, freedom of political communication, rights of property and privacy were not commensurate. They were not factors to be balanced as the court sees fit in making a discretionary judgment. [80] He did not have to consider, however, how protection of privacy or extension of injunctive relief could be developed in a principled way in accordance with constitutional protection of the freedom of political communication.
Kirby J, on the other hand, considered that the freedom of political communication had a direct, and in this case determinative, impact on the exercise of discretion to order injunctive relief. In Kirby J's view, the Court has a duty to conform to the Constitution when interpreting the power to grant injunctive relief. But, in his view, an injunction to restrain the use of information obtained illegally, tortiously, surreptitiously or otherwise improperly, where such use would be unconscionable, is not incompatible with the constitutional protection of freedom of political communication. He seemed to suggest that any incompatibility would only arise when the information in question comes within the coverage of the constitutional protection. He also suggested that the chance of incompatibility does not deny the existence of the power of a court to grant an injunction, but rather goes to modify the exercise of that power to ensure that protection of political communication is considered in the exercise of discretion. Therefore, the exercise of discretion in granting an interlocutory injunction involves weighing competing interests including consideration of the constitutional principle in Lange protecting freedom of political communication.[81]
Therefore, in contrast to Gleeson CJ, Kirby J considered that the protection of political communication was capable of being weighed against the 'dictates of conscience' calling for equitable relief.[82] Questions of public interest, or at least those that are or may be the subject of regulation, are balanced with protecting against the unconscientious use of surreptitiously obtained information. Kirby J suggested that the exercise of the power to grant an injunction might be justified where the denigration of individual reputation or invasion of privacy is gross, or alternatively the political aspects are trivial or enlisted unpersuasively.[83] In other circumstances, however, allowing disclosure of a relevant political or governmental issue would appear to determine the exercise of discretion against the grant of an injunction.
The reason for invoking consideration of the constitutional protection in the exercise rather than the existence of the statutory power to grant an injunction is not clear. Presumably the first element of the test in Lange,[84] namely whether a law effectively burdens freedom of communication about government or political matters either in its terms, operation or effect is dependent on the way in which it is exercised. Therefore, it is only when the power to issue an injunction is exercised in a way that prevents the disclosure of relevant political or governmental information that the principles in Lange are engaged. It is then a question of whether the power, as exercised, is reasonably appropriate and adapted to serve a legitimate end that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.[85] Weighing the various competing interests in the exercise of discretion involves assessing the proportionality of the burden on political communication against the interests served in preventing disclosure and therefore acts to ensure that the exercise of power is appropriate and adapted to serve a legitimate end.[86] The power to grant an injunction would therefore seem dependent on the way in which it was exercised, suggesting that characterising a decision as a miscarriage of discretion rather than an invalid exercise of power may distort that dependence and possibly affect the avenues for appeal or review of such a decision.
The question of whether footage of the killing of possums comes within the coverage of the freedom of political communication[87] is answered by Kirby J by looking at the nature of both the information to be broadcast and the nature of the broadcaster. He suggested that the regulation of animal welfare is generally a responsibility of State parliaments. However, the relationship between the States and the Commonwealth, the role of the Constitution in authorising State parliaments, and the exceptional powers afforded to State parliaments in relation to the composition of the Senate all suggest the application of the freedom of political communication to ensuring the representative and democratic nature of the State parliaments.[88] The appellant also has powers and responsibilities including facilitating political and governmental discourse throughout Australia and as a part of the broadcast media influences matters of general political concern on a nationwide scale. The subject matter of the footage concerns a business that is engaged in the export business.[89] Therefore, Kirby J accepted that the footage contained material of federal and not just local concern. He considered that the subject of animal welfare generally is clearly a matter of national public debate, with media attention an important contribution to such a debate. He therefore considered that constitutional protection should extend to discussion of animal welfare as a legitimate matter of governmental and political concern.
Kirby J concluded that there was inadequate weight given to the constitutional protection of political communication in this case and therefore the exercise of the power to grant an injunction miscarried. He suggested that the respondent should be left to the recovery of damages for any cause of action it could prove against the appellant, though there is no indication of what causes of action might be available.
The approach taken by Kirby J is based on the statutory nature of the power to issue an injunction, and not the particular cause of action that may provide the basis for the exercise of the power. Provided there is more than a trivial connection with political communication of the sort protected by the Constitution, injunctive relief should be denied. Kirby J only referred to issues of personal privacy and individual denigration as examples of where giving adequate weight to the constitutional freedom may not require denying injunctive relief.[90] Even then, he suggested that the physical impairments of United States President F D Roosevelt, if publicised, 'may well have contributed to more informed attitudes to physical impairment generally' and would at least be a 'legitimate subject to be weighed in the balancing exercise required by an application for the provision of injunctive relief'.[91] This illustration demonstrates that even information about an individual's physical impairment may in some circumstances be sufficiently connected with the political process to prevent the grant of an injunction against disclosure. Privacy may therefore be something that is affected by the position of the individual in society.
This approach also suggests that there may be some overlap between information Kirby J may consider private and information that is protected as a form of political communication. Any tort of privacy in Australia may, however, have to be developed in light of that constitutional protection.[92] The nature of private information protected under any such new tort may therefore be limited to information that is not subject to protection of freedom of political and governmental communication, or as it is more strictly referred to, the institution of representative and responsible government as required in the terms and structure of the Constitution.[93] Further elaboration of whether there remains 'a large area in between what is necessarily public and what is necessarily private'[94] as suggested by Gleeson CJ, or whether notions of individual autonomy that may be inherent in both privacy and the institution of representative government[95] is needed before a clearer relationship between these two areas can emerge.
In contrast, Callinan J disagreed with the very concept of protection of freedom of political communication recognised in Lange and previous cases. He stated that the court should be wary of simply accepting there have been changes in circumstances that may make such an implication necessary,[96] and suggested that there are various changes, including increased references to ombudsmen and parliamentary committees, that suggest that the media and other private actors should have less rather than more protection.[97] Although Callinan J was not prepared to depart from the Lange principle in this case, he was unwilling to expand it further. Therefore he concluded that according protection to the broadcast of the footage in this case would amount to a considerable, and therefore unacceptable, expansion of the doctrine for which Lange stands.[98]
The respondents in Lenah conceded that information about the nature of the processing of possums was not confidential. The operations were required to be, and were, licensed by a public authority, the abattoir was regularly inspected and visited by the those having business at the abattoir, and there was no suggestion that entry was unduly restricted to prevent awareness of the nature of the process being employed or that there were restrictions preventing those who saw the process from describing it to anyone else.[99] There was therefore no claim made that recording the footage or its subsequent broadcast would constitute a breach of a confidential relationship. However, the respondents suggested that the process of slaughtering animals is normally 'hidden from public view',[100] and that the broadcast of the footage would harm the export market of the possums as potential customers may be distressed and perhaps even angered at the way in which possums were lawfully slaughtered. It was only the graphic depiction of the process as captured on video that the respondents wanted to prevent being seen by the members of the public. Therefore while the subject matter of the footage, the slaughtering process, may not have been confidential, the way in which that slaughtering process looked and sounded is something that was relatively not generally known by those who purchased possum meat. It is therefore useful to consider why breach of confidence may not have given rise to a serious case to be tried in these circumstances.[101]
An action for breach of confidence generally has three elements: the information must have the necessary quality of confidence; it must have been imparted in circumstances importing an obligation of confidence, and there must be unauthorised use of that information to the detriment of the party communicating it.[102] It has been accepted that a photograph, and presumably by analogy video footage, conveys information about what something actually looks like that can't be generally communicated in any other way.[103] To establish that information must have the necessary quality of confidence it must be shown to be relatively secret.[104] Absolute secrecy is not required. Thus, as was pointed out in Schering Chemicals Ltd v Falkman Ltd:[105]
[T]hough facts may be widely known, they are not ever-present in the minds of the public. To extend the knowledge or to revive the recollection of matters which may be detrimental or prejudicial to the interests of some person or organisation is not to be condoned because the facts are already known to some and linger in the memories of others.[106]
Similarly, in the recent case of Hitchcock v TCN Channel 9[107] the Supreme Court of New South Wales referred to the fact that 'publication of [the applicant's] interview in prime-time free-to-air television would communicate information about the matters referred to in the Complaint to a different and probably much wider audience than has been reached by publication so far.'[108] In G v Day[109] information was treated as confidential where prior publication was transitory in nature.[110] Thus while the degree of secrecy required is unclear, the evidence in Lenah was that broadcast of the footage would significantly harm the respondent's export market.[111] As no more than a verbal or written description could be generally conveyed without actually visiting an abattoir, the footage constituted qualitatively different information from that generally available to the market supplied by the respondent. The context or the way in which the information about the process can be distributed may be restricted, even though the actual process was not. The respondents may have been able to adduce evidence that they would have at least prevented the video-taping and subsequent broadcasting of what is seen by anyone visiting the abattoir.[112] The respondent's submission that it would be clear to the appellants that the video had been obtained through trespass seems to imply that there were restrictions on authorised visitors taking or using video footage of the process. It would seem an arguable question whether the barriers to being able to see and hear the possum slaughtering process would have resulted in the footage being, for the purposes of confidentiality, still relatively secret.
The second element focuses on the relationship in which the information is originally imparted. However, this does not necessarily require a pre-existing relationship between the parties.[113] Generally it is only a question of whether a person gaining access to the information knew or should reasonably have realised the restrictions placed on the use or disclosure of the information.[114] Thus the nature of the parties and why the information in question is important to them is a factor to be taken into account in determining the obligations placed on others.[115] Surreptitiously obtained information has been accepted as giving rise to a relationship of confidence.[116] Third parties that, in turn, gain access to the information from another in breach of confidence can, at least, be enjoined to prevent further disclosure after they are informed of the confidential nature of the information.[117]
It is the way in which confidentiality has been used to protect against use or disclosure of surreptitiously obtained information that has led to it being called upon to protect what may be considered privacy interests. For example, in the recent English case of Douglas v Hello! Ltd[118] unauthorised photographs taken at a celebrity wedding may have been the subject of an injunction due to the confidential nature of the wedding. Guests were free to talk about or describe the wedding, but were prevented from bringing cameras and were told that OK!, a rival magazine, had the exclusive rights to photograph the wedding. It was therefore reasonably clear to anyone attending the wedding that use or distribution of the photographic information about the wedding was protected through confidentiality.
As well as questions of confidentiality, Douglas v Hello! Ltd[119] also concerned the application of the Human Rights Act 1998 (UK) and its protection of the rights to freedom of expression and respect for private and family life.[120] While each of the judges dealt with the relationships between these elements in slightly different ways, they agreed that there was little inherently private about photographs of a wedding that had been sold and were to be published according to a great deal of publicity.[121] This 'selling out' also contributed to the adequacy of damages and the balance of convenience being in favour of not preventing publication of the rival magazine, and ultimately therefore any injunction being refused. However, any discussion of the nature of privacy and its relationship with confidentiality is brief given the urgency of the interlocutory injunction in question. As Gummow and Hayne JJ suggested 'the necessarily tentative consideration of the topic in [Douglas v Hello! Ltd] ... assumes rather than explains what "privacy" comprehends and what would amount to a tortious invasion of it.'[122] However, it does illustrate that the nature of private information may be dependent on the nature of the harm to the person seeking protection and whether they are attempting to use privacy as a means to appropriate value from controlling distribution of the information in question. In this way questions of privacy may influence and be influenced by the confidentiality of the information in question.
This relationship between confidentiality and privacy is also demonstrated by the way in which that relationship is used in different ways by the judges in Lenah. Gleeson CJ stated that '[i]f the activities filmed were private, then the law of breach of confidence is adequate to cover the case',[123] suggesting both that the private nature of information is sufficient to give rise to the obligation of confidence, and that perhaps information must be confidential to be private. The development of a tort of privacy would therefore not expand the scope of protection already offered, implying that exposure to private information would reasonably imply restrictions on further disclosure of that information. Gummow and Hayne JJ did not address confidentiality except to acknowledge the concession by the respondent and by quoting from United States sources reflecting on the differences between protection of trade secrets and the privacy of individuals.[124] They did not discuss whether there is any difference in the application of confidentiality principles when corporations are involved, and correspondingly whether there is a measure of protection for individuals that confidentiality will not protect. Kirby and Callinan JJ relied on the analogy between confidential information and surreptitiously obtained information to found a power to grant an injunction. Callinan J also went further in suggesting that clearly there would be restrictions on those viewing the process in question to not video and broadcast it, but does not go on to discuss the implications this may have for confidentiality as discussed above.
Confidentiality therefore is affected by each of the three aspects of unconscionability and privacy discussed above. The way release of the information will harm the respondent, the way in which that information was apparently obtained, and the potential commercial or other benefit from use of the information are all considered in assessing whether recording the footage would be a breach of confidence. Where the information is private in nature, and can only be obtained through interference with the exclusive rights of the property owner are therefore included in an assessment of the confidentiality of the information or the way in which it is to be conveyed. Confidentiality however allows for appropriating the value of the information to others through controlling the means of disclosure of the information, an attribute potentially inconsistent with the objectives of privacy protection.
The other way in which confidentiality may have been relevant to the issues raised in this case is the extent to which a breach of confidence can be justified by the disclosure being in the public interest, and whether this justification is affected by constitutional protection of political communication. Various English courts have controversially engaged in a balancing exercise, weighing the public interest in preservation of confidences against the public interest in disclosure of information.[125] Such an approach has been criticised in Australia, with Gummow J in particular considering that any justification for a breach of confidence relies on the disclosure of an iniquity, such as crime or fraud. He suggests that in the English cases:
[T]he so-called 'public interest' defence is not so much a rule of law as an invitation to judicial idiosyncrasy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or override the obligation of confidence.[126]
Other judges, however, including Kirby J in his role of President of the NSW Court of Appeal, have seemingly adopted a balancing test in Australia.[127] As confidentiality was not substantively discussed in Lenah, the extent to which a constitutional freedom of political expression may support the extension of a balancing approach to the disclosure of confidential information is unclear. Questions over the relationship between the constitutional protection and notions of privacy may similarly have an influence on the confidentiality of information that is private in nature. Privacy, political communication and confidentiality all seem to involve resolution of the distinction between 'what is interesting to the public' and 'what is in the public interest to be made known'.[128]
Gummow and Hayne JJ[129] raised the issue of whether there was some basis on which the respondents could claim to have an equitable interest in the copyright subsisting in the cinematographic film of the possums being killed.[130] They suggest that:
[A] cinematograph film may have been made ... in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the maker to the plaintiff. It may then be inequitable and against good conscience for the maker to assert ownership of the copyright against the plaintiff and to broadcast the film. The maker may be regarded as a constructive trustee of an item of personal (albeit intangible) property, namely the copyright[131]
Generally, the balance of authorities seems to suggest that parties who do not hold the legal interest in copyright cannot obtain final relief.[132] However, Gummow and Hayne JJ suggested that the respondents may have been entitled to an order requiring an assignment of the legal property rights in question, and in the meantime could be entitled to an interlocutory injunction. However, as the respondent raised no question of ownership of the copyright in the sounds and images they did not pursue this further.
The issue of equitable ownership of copyright has been raised before in different circumstances, most notably in the case of Bulun Bulun v R & T Textiles[133] where the relationship between an indigenous artist and his community could have been fiduciary in nature, based on the mutual trust and confidence expressed in customary law. This may have entitled the community to an interlocutory injunction and perhaps ultimately a constructive trust over the copyright works where the artist failed to take action to prevent the exploitation of works in a way that was contrary to the community’s laws and customs.[134] The issue of equitable ownership of copyright is therefore not only of interest to those whose real property rights have been infringed. However the reasoning in Bulun Bulun was the result of a pre-existing fiduciary relationship rather than an apparent extension of real property rights.
Extending equitable protection to ownership of copyright produced in breach of other legal or equitable obligations raises a number of potentially complex issues regarding the terms of the Copyright Act 1968 (Cth). On the facts of this case, if it is accepted that there were no restrictions on authorised visitors videoing the process, and hence no question of confidentiality, then the purpose of providing the respondent with an interest in the copyright is also unclear. To the extent that it relies on the existence of existing property rights, it is difficult to see the difference between providing equitable ownership of the copyright in the video made while trespassing and ownership of the tape itself.[135] Any item of property, and not just rights in copyright, obtained or generated, presumably wholly, through wrongful or tortious action may then similarly give rise to equitable ownership. This therefore comes very close to Callinan J's argument on unconscionability, providing a cause of action as described above.
This argument also suggests that trespass, or other interference with property rights, is sufficiently inequitable and against good conscience to provide the basis for injunctive intervention. However, unlike the respondent's argument, the trespass may have to be related to the creation and ownership of property rights rather than used in an attempt to establish an independent cause of action. Therefore, there may be a way to establish property rights in a spectacle based on the way information on that spectacle was collected. However, as Gummow and Hayne JJ themselves suggest in relation to the submissions of the Commonwealth Attorney-General, providing equitable ownership of copyright on the basis of the way in which the subject matter of the copyright work has been obtained could cut across the accountability in equity of third parties in abuses of confidence cases[136] and the treatment of government secrets.[137]
There are a number of other issues, some of which were discussed by the judges, which were potentially relevant to this case or may be important if similar circumstances arise in the future.
As discussed above, the grant of an interlocutory injunction involves an assessment of whether there is a serious case to be tried and, if so, where the balance of convenience then lies.[138] Assessing the balance of convenience involves questioning the adequacy of any damages that may be awarded if the applicant is ultimately successful at final hearing. In defamation cases, it is commonly accepted that the court should be reluctant to grant an interlocutory injunction except in clear cases[139] in a reflection of the balance between protection of the individual against the public interest in freedom of speech.[140] Callinan J criticised this approach as an unjustified favouring of the principle of free speech.[141] Kirby J suggested that the constitutional protection of political communication provides a surer foundation for such reluctance. One aspect of this concern is that, unlike infringement of the freedom of political communication, defamation may generally be remedied through a damages award. The availability of damages was one of the reasons put forward in Douglas v Hello! Ltd[142] indicating the balance of convenience lay against the grant of any injunction. In Lenah, the respondent had put forward evidence of the potential damage to its export business as a result of any broadcast, suggesting that damages may have been an appropriate remedy. Evans J in the Supreme Court Full Court suggested that even exemplary damages might not always be available or adequate.[143] The extent to which privacy is an interest for which monetary damages may not be an appropriate remedy remains to be explored.
There are, therefore, various recognised causes of action in Australia that would provide some protection against interference with privacy. As listed by Gummow and Hayne JJ:[144]
Injurious falsehood, defamation (particularly in those jurisdictions where, by statute, truth of itself is not a complete defence), confidential information and trade secrets (in particular, as extended to information respecting the personal affairs and private life of the plaintiff,[145] and the activities of eavesdroppers and the like[146]), passing-off (as extended to include false representations of sponsorship or endorsement[147]), the tort of conspiracy, the intentional infliction of harm to the individual based in Wilkinson v Downton[148] and what may be a developing tort of harassment,[149] and the action on the case for nuisance constituted by watching or besetting the plaintiff's premises,[150] come to mind. Putting the special position respecting defamation to one side, these wrongs may attract interlocutory and final injunctive relief.
To this may be added that issue raised by Gleeson CJ of whether a cause of action may be available to enable to enforcement of the criminal law.[151] The respondents in Lenah, however, were not arguing for an extension of any of these causes of action or attempting to generalise their application to the circumstances in Lenah. They were arguing for the development of a separate cause of action, one that would effectively fill a gap in the existing causes of action. All of the judges appeared willing to restrict their arguments to those raised by the parties and were not willing to do more than raise the possibility that extension of other causes of action may potentially have founded the injunction sought by the respondents.
The decision in Lenah was handed down thirty six days before the commencement of the amendments to the Privacy Act 1988 (Cth) applying national privacy principles to the collection and recording of personal information of natural persons by large private organisations.[152] At the time the Criminal Code Amendment (Espionage and Related Offences) Bill 2001 was before Parliament, providing for criminal sanctions for those who had leaked or published official secrets. Neither of these has any application to the situation in Lenah. The issue of privacy, however, is clearly an increasing, important matter of public concern.
The decision in Lenah raises far more questions than it answers. It leaves open development of a tort of interference with privacy, perhaps limited through the constitutional protection of freedom of expression. It also suggests that property rights will continue to remain more important in the protection of privacy, though it raises questions about the ability of property rights and confidentiality to allow control of the distribution of information rather than merely protecting seclusion or preventing the disclosure of facts. Ultimately, if development of a tort of unjustified interference with privacy is going to provide any additional protection it will require a clearer expression of the interests to be protected as private, which in turn will require a discussion of the relationship between privacy, property and confidentiality. Each involve the interplay between the way in which information is obtained and the extent to which that is evident to third parties in receipt of the information, the damage done in release of the information and the benefits to be derived from use or disclosure of the information. The question remains whether these factors can be separated and used to provide the basis for different forms of protection without recourse to idiosyncratic notions of what is just or fair in the circumstances.
[*] [2001] HCA 63 (15 November 2001) ('Lenah').
[**] BEc/LLB (ANU), LLM (UVa), Lecturer, Faculty of Law, The Australian National University. I would like to thank Adrienne Stone, Graeme Hill and Michael Coper for helpful suggestions about where to look.
[1] [1937] HCA 45; (1937) 58 CLR 479 ('Victoria Park Racing').
[3] Unreported, Supreme Court of Tasmania, Underwood J, 3 May 1999.
[4] Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation [1999] TASSC 114 (Unreported, Wright, Slicer and Evans JJ, 2 November 1999).
[5] See (2001) 185 ALR 1, 39, [135] – [138].
[6] Ibid 38, [132].
[7] Ibid 46-47, [160].
[8] Ibid 53, 268, [183], [268].
[9] Ibid 55, 56, [189], [191].
[10] Ibid 85, [298].
[11] Ibid 95, [335].
[12] Ibid 103, [348].
[13] Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation [1999] TASSC 114 (2 November 1999) [72].
[14] The judgments of Gummow JJ, Hayne, Gaudron J, and Gleeson CJ are discussed below.
[15] (2001) 185 ALR 1, 24, [88] (Gummow and Hayne JJ).
[16] Ibid 24-6, 30-1, [88] – [92], [105].
[17] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, 153; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1, 24, [21]; Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 121-2, [26]-[27].
[18] (2001) 185 ALR 1, 25, [91].
[19] Ibid 17, [59] (Gaudron J).
[20] Ibid 6, [12] (Gleeson CJ), 18, [62] (Gaudron J). Note that Gummow and Hayne JJ also refer to the power of the court to protect the integrity of its processes in relation to 'anti-suit injunctions' ibid 24, [94].
[21] Ibid 6, [12] (Gleeson CJ), 27 [62] (Gaudron J).
[22] Ibid 45, [159].
[23] Ibid 83, [287].
[24] Ibid 83, [288].
[25] Ibid 25-6, [92].
[26] [1937] HCA 45; (1937) 58 CLR 479, 509.
[27] Ibid 32, [109] – [110].
[28] [1984] HCA 73; (1984) 156 CLR 414, 445-6.
[29] See also the statement by Gummow and Hayne JJ that '[d]ecisions of equity courts are not a wilderness of single instances determined by idiosyncratic exercises of discretion', ibid 39, [138].
[30] (1986) 4 NSWLR 457, 463.
[31] (2001) 185 ALR 1, 28-9, [100].
[32] See ibid 14-15, [44] – [46].
[33] See for example the analysis of Gleeson CJ, ibid [44].
[34] Ibid 85, [298].
[35] Note that this involves both tangible and intangible (ie copyright) property. See further the discussion below concerning the equitable ownership of copyright.
[36] (2001) 185 ALR 1, 84- 5, [296].
[37] Ibid 85, [297].
[38] Ibid 87, [303].
[39] [1910] HCA 58; (1910) 12 CLR 105, 110.
[40] [1978] Qd R 72. Note that this is considered further below in discussing possible equitable ownership of the copyright in the videotape. See below n 116.
[42] Callinan J refers to Home Office v Harman [1983] 1 AC 280 but see also Ainsworth v Hanrahan (1991) 25 NSWLR 155.
[43] Wheatley v Bell [1982] 2 NSWLR 544.
[44] (1986) 4 NSWLR 457 ('Lincoln Hunt').
[45] Ibid 463.
[46] Ibid.
[47] Ibid.
[48] Ibid 464.
[49] It should also be noted that the case was dealt with summarily and had to be concluded within a limited time, with reasons held over for only one night: ibid 458.
[50] See Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports 80-101 (Needham J); Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 (Williams J); Blacktown City Council v Sharp [2000] NSWSC 339 (11 April 2000); Whiskisoda Pty Ltd v HSV Channel Seven Pty Ltd (Unreported, Supreme Court of Victoria, McDonald J, 5 November 1993). Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports 81-231 62,380; Takhar v Animal Liberation SA Inc [2000] SASC 400, Unreported, Lander J, 24 November 2000) [75]-[80]. For a discussion of some of these cases see RP Handley, 'Trespass to Land as a Remedy for Unlawful Intrusion on Privacy' (1988) 62 Australian Law Journal 216 and AH Hudson, 'Consumer Protection, Trespass and Injunctions' (1988) 104 Law Quarterly Review 18.
[51] [1988] 2 Qd R 169 (Williams J).
[52] See generally the discussion in Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2001), 380 and 426ff.
[53] (2001) 185 ALR 1, 50, [172] (footnotes omitted).
[54] Ibid 52-3, [181] (footnotes omitted).
[55] Ibid 53, [182].
[56] See Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11 (1979) 112-16 [215]-[222]; Australian Law Reform Commission, Privacy, Report No 22 (1983) vol 2, 21 [1076]; Megan Richardson, 'Breach of Confidence, Surreptitiously or Accidentally Obtained Information and Privacy: Theory versus Law' [1994] MelbULawRw 7; (1994) 19 Melbourne University Law Review 673, 675; ibid [186] (Kirby J).
[57] [1937] HCA 45; (1937) 58 CLR 479, 509. See the discussion above n and accompanying text.
[58] New South Wales, Report on the Law of Privacy, Parliamentary Paper No 170 (1973) para 12.
[59] (2001) 185 ALR 1, 91, [320].
[60] [1937] HCA 45; (1937) 58 CLR 479, 509-10.
[61] (2001) 185 ALR 1, 13 [42].
[62] Gummow and Hayne JJ refer to Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716; Bradley v Wingnut Films Ltd [1993] 1 NZLR 415; P v D [2000] 2 NZLR 591, [117] n 129.
[63] William Prosser, 'Privacy' (1960) 48 California Law Review 383, 389. This categorisation has been accepted by the United States Supreme Court in Time Inc v Hill, [1967] USSC 11; 385 US 374, 383 (1967); Cox Broadcasting Corporation v Cohn [1975] USSC 44; 420 US 469, 488 (1975), and forms the basis of the Privacy topic in the Restatement (Second) of Torts (1977) s 652A-E. See Lenah Meats (2001) 185 ALR 1, 35, [120] (Gummow and Hayne JJ), [323] (Callinan J).
[64] Restatement (Second) of Torts (1977) s 652A-E.
[65] Thus the privacy interest argued for by the respondents was to be free of publicity of facts obtained unlawfully.
[66] (2001) 185 ALR 1, 12, [35].
[67] Ibid 13-14, [43].
[68] Ibid.
[69] Ibid 37, [125] drawing on the words from Douglas v Hello! Ltd [[2001] 2 WLR 992, 1025; [2000] EWCA Civ 353; [2001] 2 All ER 289, 320.
[70] (2001) 185 ALR 1, 37, [126].
[71] And hence it can't be used to effect, among others, a generalised tort of unfair competition rejected in Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] [1984] HCA 73; (1984) 156 CLR 414, 445-6.
[72] Kirby J referred to R v Broadcasting Standards Commission; Ex parte British Broadcasting Corporation [2000] EWCA 59; [2000] 3 WLR 1327, 1337 [33] which held that a corporation may be entitled to protection of privacy under the Human Rights Act 1998 (UK), at least for the purposes of whether the Broadcasting Standards Commission had jurisdiction to hear a complaint of interference with privacy by the BBC; cf Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385, 395 where Murphy J denied companies the privilege against self-incrimination, referring to Hale v Henkel, [1906] USSC 54; 201 US 43, 74 (1906); United States v White, [1944] USSC 109; 322 US 694, 698-9 (1944).
[73] Opened for signature 19 December 1966, 999 UNTS 17 (entered into force 23 March 1976).
[74] (2001) 185 ALR 1, 55-6 [190].
[75] Ibid 89, [316].
[76] Ibid 93, [328].
[77] Ibid 94, [329].
[78] [1997] HCA 25; (1997) 189 CLR 520 ('Lange').
[79] (2001) 185 ALR 1, 12, [35].
[80] Ibid 7-8, [20].
[81] Kirby J draws the analogy with the way in which granting interlocutory injunctions to prevent allegedly defamatory material involves exercising care to balance the protection of the individual against the public interest in freedom of speech, citing Wilson v Parry (1937) 54 WN (NSW) 167, 169; Stocker v McElhinney (No 2) [1961] NSWR 1043, 1049 (Walsh J); Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, 160-1; see also Bonnard v Perryman [1891] 2 Ch 269, 284: (2001) 185 ALR, 1, 60 [207] n 292.
[82] Ibid 63, [216].
[83] Ibid 60, [205], 63, [219].
[84] See Lange [1997] HCA 25; (1997) 189 CLR 520, 567 (citations omitted).
[85] Ibid.
[86] The Court in Lange seemed to equate the test of proportionality with being reasonably appropriate and adapted: Lange [1997] HCA 25; (1997) 189 CLR 520, 561-2, 567-8.
[87] Coverage refers to the category of communications that is accorded some level of protection under the freedom, see Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication' [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374, n 12.
[88] (2001) 185 ALR 1, 58, [197].
[89] Kirby J also relied on the damage that would be done to the business through release of the footage, though presumably only to suggest that how possums are processed is a matter of national concern: ibid.
[90] Ibid 63, [219].
[91] Ibid. It should be noted that this may represent an expansion of the coverage of the protection of political and governmental communication to include issues which may be influenced by political players, or alternatively a form of communication that develops qualities desirable in a voter as discussed by Stone, above n 87, 387.
[92] The Court in Lange suggested that, although freedom of political communication directly precluded 'the curtailment of the protected freedom by the exercise of legislative or executive power' (Lange [1997] HCA 25; (1997) 189 CLR 520, 560) it also suggested that development of the common law ought to take into account constitutional values: Lange [1997] HCA 25; (1997) 189 CLR 520, 571. None of the judges in Lenah had to consider the impact of the freedom of political communication on the development of any tort of privacy.
[93] Lange [1997] HCA 25; (1997) 189 CLR 520, 566-7.
[94] (2001) 185 ALR 1, 13, [42].
[95] For a discussion of the way in which autonomy may be instrumental to the achievement of representative and responsible government see Stone, above n 87, 391ff.
[96] (2001) 185 ALR 1, 101, [345].
[97] Ibid 99-100, [342].
[98] Ibid 103, [348]. Note that Callinan J also considers that there should be no need for extra caution in deciding whether to grant an injunction in a defamation case. The need for caution reflects giving all weight to free speech with insufficient weight to the continued hurt to a defamed person: ibid 103- 105, [349] – [352].
[99] See for example the description of the facts by Gleeson CJ, ibid 9, [25].
[100] Ibid.
[101] Note that the argument presented here is not intended to be comprehensive but merely to raise the question as to whether an argument in favour of breach of confidence could have been sustained, or, least to illustrate that further consideration of the issue was needed.
[102] Coco v A N Clark (Engineers) Ltd (1969) RPC 41, although note that there has been doubt expressed about the need to establish detriment beyond the breach of the relationship of confidence.
[103] Douglas v Hello! Ltd [2000] EWCA Civ 353; [2001] 2 All ER 289, 324 [138] (Sedley LJ), 329, [165] (Keene LJ).
[104] See the discussion in Sam Ricketson, The Law of Intellectual Property: Copyright, Designs & Confidential Information (1999), [25.85].
[105] [1982] QB 1, 28 (Shaw LJ).
[106] See also Mills v News Group Newspapers Ltd [2001] EWHC Ch 412 (4th June, 2001) [25] where it was stated ‘[s]o the fact that information may be known to a limited number of members of the public does not of itself prevent it having and retaining the character of confidentiality, or even that it has previously been very widely available’, citing as examples Stephens v Avery, [ 1988] Ch 449, 454, 454; R v Broadcasting Complaints Commission; Ex parte Granada Television Ltd. [1995] EMLR 163, 168; Creation Records Ltd. v. News Group Newspapers Ltd [1997] EMLR 444, 456 (Shaw LJ’s Footnote).
[108] Ibid 9, [25].
[110] See Richardson, above n 56, 689, n 113.
[111] The issue of whether harm may occur outside of the court's jurisdiction also raises various issues that have not been clearly answered, but there would appear little justification in requiring that secrecy only apply to the jurisdiction of the court. Cases have denied secrecy on the basis that information, although held overseas, would be known by competitors of the applicant for relief and thus was no longer secret; see Franchi v Franchi [1967] RPC 149 (Ch). Gummow and Hayne JJ in Lenah in discussing the concession about the breach of confidence, suggest that information may be regarded as public knowledge though only notorious in a particular industry ((2001) 185 ALR 1, 21 [73]). While it may still be possible to argue that what the particular process looks like in the Respondent's abattoir may not be generally known, the most important question is whether information that is intentionally limited to a particular industry can remain confidential to the public at large.
[112] This is suggested by Callinan J: (2001) 185 ALR 1, 71, [249] and 80-1,[279]-[280].
[113] See, for example, the discussion in Ricketson, above n 104, [25.140], Richardson, above n 56; and the discussion below. Gleeson CJ also suggests that 'equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence', (2001) 185 ALR 1, 11, [34].
[114] Coco v A N Clark (Engineers) Ltd (1969) RPC 41, 48 (Megarry J).
[115] For example, Mason J in The Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 51 pointed out that 'when equity protects government information it will look at the matter through different spectacles'.
[116] In Franklin v Giddins [1978] Qd R 72 use of stolen nectarine bud-wood was held to be a breach of confidence, illustrating that trespass can lead to the establishment of a confidential relationship.
[117] See the discussion in Ricketson, above n 104, [25.129] - [25.130]. Gleeson CJ accepted that obligations of confidentiality may be imposed even though there is no imparting of information in circumstances of trust and confidence ((2001) 185 ALR 1, [34]).
[118] [2000] EWCA Civ 353; [2001] 2 All ER 289.
[119] Ibid.
[120] The Human Rights Act 1998 (UK), s 6 requires every public authority, including courts, to act consistently with the European Convention of Human Rights, which includes the right to freedom of expression (art 10) and the right to respect for private and family life, his home and his correspondence (art 8).
[121] Brooke LJ suggested that it was not a private wedding in the normal sense of the word ([2001] 2 All ER 289, 314, [95]), Sedley LJ suggested that the wedding would have been private but for the photos being sold for publication, but even then they maintained the element of privacy that enabled them to 'maintain the kind of image which is professionally and no doubt also personally important to them' (ibid 324-5, [140]) and Keene LJ suggested that only a limited amount of privacy had not been lost through the widespread publicity (ibid 331, [169] - [171]).
[122] (2001) 185 ALR 1, 34, [116].
[123] Ibid 12, [39].
[124] Ibid 37-8 [128] quoting from Anthony D'Amato, 'Comment: Professor Posner's Lecture on Privacy' (1978) 12 Georgia Law Review 497, 499-500.
[125] See the discussion in Ricketson, above n 104, [26.5].
[126] Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health [1989] FCA 248; (1990) 17 IPR 545, 583.
[127] Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 IPR 153, 232-5 (Kirby P); Esso Australia Resources Ltd v Plowman (Minister for Resources) (1995) 183 CLR 10, 31-2 (Mason CJ); Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 (NSW Supreme Court, Powell J).
[128] In the words of Lord Wilberforce in British Steel Corporation v Granada Television Ltd [1981] 1 All ER 417, 455.
[129] Callinan J agreed with this point, (2001) 185 ALR 1, 88, [309].
[130] Ibid 29 – 30, [101] – [103].
[131] Ibid 29, [102].
[132] See the discussion in Ricketson, above n 104, [14.132] and [14.335].
[133] [1998] FCA 1082; (1998) 41 IPR 513.
[134] Ibid 531-2.
[135] Callinan J, (2001) 185 ALR 1, 84-85 [296] raises the possibility of treating the tape itself as a tangible item of property in the same way as any other stolen goods.
[136] For example, Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 459-60; Breen v Williams (1996) 186 CLR 71, 129; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 537, 567.
[137] For example, Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39.
[138] See text above before n 17.
[139] Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344, 349; National Mutual Life Association of Australasia Ltd v GTV Corp Pty Ltd [1989] VicRp 66; [1989] VR 747, 764. See also above n 81.
[140] Kirby J cites ([207]) Wilson v Parry (1937) 54 WN (NSW) 167, 169; Stocker v McElhinney (No 2) [1961] NSWR 1043, 1049 (Walsh J); Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, 160-1; see also Bonnard v Perryman [1891] 2 Ch 269, 284.
[141] (2001) 185 ALR 1, 104-5 [351].
[142] [2000] EWCA Civ 353; [2001] 2 All ER 289, 314-315, [96] – [99].
[143] Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation [1999] TASSC 114 (2 November 1999), [16].
[144] (2001) 185 ALR 1, [123].
[145] Breen v Williams (1996) 186 CLR 71, 128. (Gummow and Hayne JJ’s footnote).
[146] Gurry, Breach of Confidence, (1984), 162-8; Richardson, above n. 110, 684-97. (Gummow and Hayne JJ’s footnote).
[147] Henderson v Radio Corporation Pty Ltd (1960) 60 SR (NSW) 576; Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] [1984] HCA 73; (1984) 156 CLR 414, 445. (Gummow and Hayne JJ’s footnote).
[148] [1897] 2 QB 57. (Gummow and Hayne JJ’s footnote).
[149] Townshend-Smith, ‘Harassment as a Tort in English and American Law: The Boundaries of Wilkinson v Downton’, (1995) 24 Anglo-American Law Review 299; Todd, ‘Protection of Privacy’, in Mullany (ed), Torts in the Nineties, (1997) 174, 200-4. (Gummow and Hayne JJ’s footnote).
[150] J Lyons & Sons v Wilkins [1899] 1 Ch 255, 267-8, 271-2, 273-4; Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479, 504, 517, 524; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760, 767. (Gummow and Hayne JJ’s footnote).
[151] Gleeson CJ points out that enforcement of the criminal law by civil injunction at the suit of a private litigant is an exceptional and narrowly confined jurisdiction, referring to Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435, 476-84, [49].
[152] Privacy Amendment (Private Sector) Act 2000 (Cth).
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