Living up to a new set of standards Law Reporter

How far will the laws of privacy protect persons who engage in activities that may be regarded as ‘unlawful’?

As readers of Law Reporter will be well aware, the Australian legal landscape has changed significantly over the last six months with a raft of new legislation being introduced to require corporations and individuals to bear in mind that there are new standards expected by society of all of them. Furthermore, in the area of criminal law generally the Commonwealth Criminal Code came into operation in December 2001 imposing a new "culture of compliance" on companies; the privacy legislation which has been embraced by both Commonwealth and State Governments imposes very significant obligations on corporations and those who manage them to ensure that the private affairs of individuals are maintained in an appropriate fashion. But how far does this law go, for example, in the context of society's ever-increasing demand for exposure of activities that might be regarded as unfair, unconscionable or even illegal? To what extent do organisations such as the Australian Broadcasting Corporation, or the media generally, have an obligation or duty to report on activities, no matter how they obtain the relevant information, in the context that it is in the public interest to expose information for public consideration?

This particular question was considered, in part, by the High Court of Australia in the fascinating decision of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd ((2001) 76 ALJR 1). While the decision turned to a large part on interpretation of specific provisions of the Supreme Court Civil Procedure Act of Tasmania (in the context of the granting of injunctions), some of the issues discussed by the High Court are relevant, in my view, across a much wider spectrum. The facts of the case are taken from the headnote published in the Australian Law Journal Law Reports. The relevant company (the original applicant for an injunction) carried on business as a processor of brushtail possums and was licensed as an export abattoir. An unknown person trespassed on its premises and installed cameras which recorded the processing operation. The recording was given to an animal welfare group, which in turn passed it on to the appellant (the ABC). The ABC proposed to broadcast some of the footage as part of the program concerning the activities of the company. That company immediately commenced proceedings in the Tasmanian Supreme Court against the ABC seeking, among other things, an interim injunction to prevent the ABC from broadcasting the information; it also sought damages.

When the matter came up for hearing, Underwood J dismissed the application. He felt there was no cause of action and therefore that no interlocutory action could lie. The ABC subsequently televised part of the tape in May 1999. The applicant company appealed. The Full Court of the Tasmanian Supreme Court by a majority allowed the appeal. The company argued that it was unconscionable for the ABC to broadcast pictures obtained by someone trespassing on its land, notwithstanding the fact that the ABC had no part or involvement in that conduct. The Full Court, by a majority, held that by profiting from the "fruits of the trespass" of a third party provided sufficient grounds for the granting of an injunction. Furthermore, in the court's view where there was unconscionable conduct (and the court felt by a majority that this claim could be at least established) the court's right to exercise its jurisdiction in equity could be invoked. This enabled it to grant the type of injunctive and other relief that was being sought.

The ABC appealed to the High Court. Before the High Court there were two critical questions raised. 1) Was the Full Court wrong in proceeding to grant an injunction to restrain media publication based on the alleged unconscionability of the ABC in the absence of any claims either in trespass (which was not a matter that was pleaded), defamation, or breach of confidence against the company? 2) Whether the Full Court in applying the equitable principle of unconscionability to the media failed to have regard to the concept of public interest and the freedom of the press. The High Court allowed the appeal by a majority with only Callinan J dissenting. The court reached its conclusions by different arguments (confirming a trend in recent High Court judgments where regrettably there is a lack of determination to ensure that a single judgment is written wherever possible so as to give greater certainty as to what the law stands for). The majority believed there was no basis for the grant of the injunction where there was no underlying cause of action to be tried. There were no grounds for granting an injunction because the applicant had not sought any claim against the ABC for trespass, defamation etc.

Furthermore, the majority felt that there was no equitable or legal right that was or would be infringed by the publication of the material by the ABC. In these circumstances the company was not entitled to any legal remedy by way of injunction. In the view of the majority the information that was obtained by the ABC through the persons trespassing on the land was information that could be broadcast by the ABC in the public interest. While there was an emerging right to protect a person's privacy this did not extend to corporations. In the circumstances if an individual had been exposed by this particular information perhaps two of the judges would have granted an injunction but not in the case of a corporation that was seeking the protection. The decision is an extraordinary one in many ways. It shows just how determined courts are to ensure that freedom of expression is protected, especially if there are no inherent rights that are being infringed. Arguably, had information of this kind been illegally obtained by the ABC, a different conclusion might well have been reached. But as noted earlier, the ABC obtained this information without being involved in the trespass to the land. It will be interesting to see how developments in relation to the law of privacy and similar developments constrain the further development of the law where parties are seeking to expose information which they believe is in the public interest.

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