'Sting' journalism has found legitimacy in the media as an acceptable method of exposing coverups and exploitation or the mistreatment of consumers. Hidden cameras and microphones, once the tools of private investigators and the tabloid press, now provide mainstream news programs with substance for primetime broadcasts. These practices however can create a tension between the public's right to scrutinise questionable activity and an individual's right to privacy. The High Court of Australia recently grappled with these issues in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited.

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The facts of the case

In November 2001, Lenah Game Meats, a company that processes possum meat for export, asked the High Court to restrain the ABC's 7.30 Report from broadcasting footage of its operations in Tasmania. The footage - of the possum slaughtering operations - was made by hidden cameras in the walls and ceilings of Lenah Game Meats' factory. Importantly, the film was made by a person unknown who then supplied it to Animal Liberation which, in turn, passed it on to the ABC.

Lenah Game Meats argued that publication of the film would cause it financial harm. It argued the footage depicted some of the most gruesome parts of the processing operation and it was likely to arouse public distress and anger. It did not claim any intellectual property rights in the film, nor did it argue that the film was defamatory. Rather, it made three allegations. First, the slaughtering operations were Lenah Game Meats' confidential information and publication of the film would breach its confidentiality. Second, publication of the film should be restrained because the film was made surreptitiously and illegally. Third, publication of the film amounted to an invasion of Lenah Game Meats' privacy.

Their application failed, but how the High Court came to its decision gives important insights into the debate on personal privacy in relation to the media. The Court's ruling also pointed to the fact that in future it may be receptive to recognising an inherent right to privacy (such as in the United States), something which is not currently recognised within Australian privacy laws.

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Confidentiality of possum processing

The first significant issue considered by the High Court was whether the ABC should be restrained from broadcasting the information because of confidentiality. This argument rested on Lenah Game Meats' slaughtering operations being considered confidential. But what constitutes confidential information? Chief Justice Gleeson said that the circumstances in which the film was made needed to be considered. Relevant factors included the nature of the activities recorded, an organisation's concern that they not be seen by the general public, and an inference that trespassers and broadcasters knew of that concern.

The High Court found that the activities of Lenah Games Meats could not be regarded as relevantly confidential even though the premises upon which the information was obtained was private property. The High Court held that the fact that the operations were required to be licensed by a public authority suggested that the information about the nature of those operations was not confidential.

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Lenah Game Meats also argued that a broadcaster such as the ABC should not be allowed to broadcast a film that had been improperly or surreptitiously obtained. This argument was based on the general legal principle of unconscionability.

On this point, Justice Kirby was sympathetic with the plaintiff's argument. He suggested that a party innocent of any trespass itself may nevertheless be restrained from publishing or broadcasting material. This may occur in circumstances where the material is acquired as a consequence of a trespass, and as a result its publication would be unconscionable and would affect the material interests of the plaintiff.

However 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.

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Right to privacy?

Lenah Game Meats also submitted to the High Court that the broadcast of the videotape could constitute an invasion of its right to privacy. This argument was a radical departure from existing law. In Australia, we are familiar with data protection laws that protect the handling of personal information (even though media organisations are exempt from such rules). However, the concept of privacy is multifaceted. One can apply the label of a privacy interest to several understandings of privacy. In addition to a right to control your personal data, there are rights to have the moral freedom to exercise full individual autonomy and the right to solitude, secrecy and anonymity. Lenah Game Meats was effectively asking the High Court for the last of these rights, a right which was not previously protected under Australian law.

As long ago as 1937 the High Court determined (in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor) that a cause of action for breach of privacy does not exist in Australia. Some of the values that might be described as aspects of 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.

Laws protecting the right to privacy do exist in similar jurisdictions such as the United States and New Zealand. For instance, in New Zealand courts have supported the notion of a general right to privacy in allowing individuals to sue for media intrusion. Likewise, in the United States, a person who invades the rights of privacy of another is subject to liability for the resulting harm to the interests of the other.

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New direction?

In this case, the High Court indicated that in the future, it may be receptive to arguments that a similar right to privacy should also be recognised in Australia. Significantly, Justices Gummow and Hayne held that the decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor did not necessarily stand in the way of the development of such law. Justice Kirby postponed addressing this issue but indicated that such a cause of action may be a possibility.

Whether, so many years after Victoria Park and all that has followed, it would be appropriate for this Court to declare the existence of an actionable wrong of invasion of privacy is a difficult question.

In its judgement, the Court referred favourably to the parameters set up under United States' law under the Restatement of the Law, Second, Torts as to what constitutes an invasion of privacy, if such a law was to develop. From this, it may be possible to glean that in the future, in appropriate circumstances, the High Court may consider a tort available where a person intrudes upon the personal affairs of another, where the matter made public is highly offensive to a reasonable person and there is insufficient public interest in having the information disclosed.

Lenah Game Meats had also argued that such a cause of action was available (or should be available) to both individuals and corporations under Australian law. 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). Chief Justice Gleeson 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.

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So what impact does this decision have on media organisations and related industries?

For one, it defines the limits of investigative journalism and makes clear that, as long as a news broadcaster is not involved in a tortious or otherwise illegal act in obtaining information, it should not be restrained from broadcasting or publishing it. However in this case, if the ABC had knowingly participated in the trespass, the majority of the High Court would have granted an injunction on the principle that it is unconscionable to broadcast a film obtained by trespass.

Comments by Justices Kirby and Callinan may have profound implications for media organisations. They stated the view that one of the Court's roles should be as a bulwark against the abuse of power by the modern media. These are strong indications that the High Court may play an important role in controlling media power in the new media environment.

An independent and active media has been the hallmark of modern liberal democracies. (For example, it was the media that uncovered the Watergate scandal.) One hopes that privacy rights will not be used by individuals to thwart legitimate investigative work of the media. There are already a number of laws which regulate information disseminated by media organisations. These include defamation, intellectual property and confidentiality. It remains to be seen how this issue will develop. 

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For further information, please contact:

Niranjan Arasaratnam Partner, Melbourne Ph: +61 3 9613 8324 Niranjan.Arasaratnam@aar.com.au		Peter O'Donahoo Partner, Melbourne Ph: +61 3 9613 8742 Peter.ODonahoo@aar.com.au
Steve Clifford Partner, Melbourne Ph: +61 3 9613 8997 Steve.Clifford@aar.com.au