Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd

Facts

Lenah Game Meats operated a possum-processing abattoir in Tasmania. An unknown trespasser covertly filmed the slaughtering operations and supplied the footage to animal-rights activists, who passed it to the ABC. Lenah sought an interlocutory injunction to restrain the ABC from broadcasting the footage, relying on trespass, breach of confidence, and an asserted general tort of invasion of privacy.

Issues

1. Whether Australian law recognises a general tort of invasion of privacy capable of supporting injunctive relief. 2. Whether the activity of a commercial abattoir was sufficiently 'private' to attract equitable protection for breach of confidence. 3. Whether an interlocutory injunction should be granted restraining broadcast of footage obtained by a trespassing third party.

Holding

The High Court (by majority) held that the injunction should be refused. The activities of a commercial abattoir were not of a private or confidential character and equity would not restrain the ABC, a stranger to any trespass, from publishing information not itself obtained in breach of confidence.

Ratio decidendi

Equity will protect against disclosure of information that is private or confidential in character; however, information concerning the commercial operations of a business conducted at a place accessible to employees and others does not possess the necessary quality of confidentiality. A third party who receives and proposes to publish such information is not, without more, restrained by equitable principles of confidence.

Obiter dicta

Several justices (notably Gleeson CJ and Gummow and Hayne JJ) left open the possibility that Australian law may in the future recognise a tort of invasion of privacy, observing that the categories of actionable privacy invasion are not closed and that any such tort would require careful development by reference to the distinction between public and private acts. Gleeson CJ suggested that a 'private' act is one that a reasonable person would understand to be private, providing a potential test for future development.

Significance

The case is the leading High Court authority on the equitable doctrine of confidentiality as applied to private information in Australia, and its obiter observations have generated sustained academic and judicial debate about whether a freestanding tort of invasion of privacy should be recognised in Australian law.

Key authorities

• Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414applied
• Prince Albert v Strange Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171considered
• Coco v AN Clark (Engineers) Ltd Coco v AN Clark (Engineers) Ltd [1969] RPC 41considered
• Attorney-General v Guardian Newspapers Ltd [No 2] Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109considered
• Hellewell v Chief Constable of Derbyshire Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804considered
• American Cyanamid Co v Ethicon Ltd American Cyanamid Co v Ethicon Ltd [1975] AC 396considered
• Emcorp Pty Ltd v Australian Broadcasting Corporation Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169distinguished