Privacy Law and Policy Reporter
Equity — interlocutory injunctions — film made by use of hidden cameras installed by trespasser — film given to broadcaster — broadcaster not involved in trespass — whether power to restrain broadcast of film as the fruits of trespass.
Torts — privacy — whether Australian law recognises tort of invasion of privacy.
Lenah Game Meats Pty Ltd (Lenah) was a processor and supplier of game meat who sold possum meat for export. Lenah’s business was conducted according to law. The methods by which the possums were killed, although lawful, were objected to by some people, including Animal Liberation Ltd, on the ground that they were cruel. Persons unknown broke and entered L’s premises and installed hidden cameras. The possum killing operations were filmed without L’s knowledge or consent, and a video tape was supplied to Animal Liberation Ltd which, in turn, supplied the tape or part of it to the Australian Broadcasting Corporation (ABC) with the intention that the ABC would broadcast it.
Lenah commenced proceedings in the Supreme Court of Tasmania against Animal Liberation Ltd and the ABC seeking an injunction and damages. Lenah sought final injunctive relief which would require the ABC to hand over the tape, and all copies or excerpts, and would prevent the ABC from broadcasting or further broadcasting the material on it. Lenah also sought, on an urgent basis, an interlocutory injunction restraining the ABC from publishing the tape or excerpts from it pending the hearing of the application for final relief. Lenah did not allege that the ABC was implicated in the trespass on Lenah’s premises.
On 3 May 1999 Underwood J refused interlocutory relief. His decision was based on three grounds:
1. there was no serious question to be tried, assuming that the allegations in the statement of claim were true;
2. even if the statement of claim disclosed a cause of action against the ABC, it could only have been in defamation, and the principles relating to prior restraint on the publication of defamatory matter dictated that interlocutory relief should not be granted; and
3. in any event, damages were an adequate remedy.
L immediately lodged an appeal, and applied to Cox CJ for an interlocutory injunction in aid of its pending appeal. This application was refused on 4 May 1999 and the ABC subsequently televised segments of the film.
On 2 November 1999 the Full Court of the Supreme Court of Tasmania (Wright and Evans JJ; Slicer J dissenting: Lenah Game Meats Pty Ltd v Australian Broadcasting Corp  TASSC 114) granted an interlocutory injunction that restrained the ABC, until further order, from distributing, publishing or broadcasting a video tape filmed by a trespasser showing Lenah’s brush tail possum processing facility.
During the course of the appeal to the Full Court Lenah conceded that:
1. it was not pursuing an action for defamation against the ABC; and
2. information about the nature of the ‘processing’ of possums was not confidential and was not imparted in confidence.
The ABC appealed and sought to have the interlocutory injunction discharged. Amongst other things Lenah argued that:
1. Australian law should recognise a tort of unjustified invasion of privacy; and
2. the Court had power to, and should, restrain the publication of a film known to have been taken as a result of a trespass on the basis that such publication would be unconscionable.
Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ (Callinan J dissenting), granted the appeal and discharged the interlocutory injunction holding as follows:
1. The statute conferring power on the Supreme Court of Tasmania to grant interlocutory injunctions in cases in which it appears to the Court to be just or convenient to do so did not confer power to make an order other than in protection of some legal or equitable right of the applicant for relief which the Court might enforce by final judgment. Hence an interlocutory injunction should only have been granted if Lenah could establish that the ABC had, or threatened to, breach Lenah’s rights (per Gleeson CJ, Gaudron, Gummow and Hayne JJ).
2. Lenah had no cause of action against the ABC, for the following reasons:
3. The Supreme Court of Tasmania had 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. Accordingly, it was unnecessary to consider whether relief may have been available on the basis of an actionable breach of privacy. In exercising its power to grant relief the Court was required to give proper weight to the constitutional principle protecting freedom of communication concerning governmental and political matters. Concerns about animal welfare and the export of animals and animal products were legitimate matters of public debate across the nation, and the Full Court erred in the exercise of its discretion to grant an injunction in failing to give proper weight to these matters (per Kirby J).
4. If a film is made in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the filmmaker to the plaintiff, the filmmaker may be regarded as the constructive trustee of the copyright subsisting in the film for the benefit of the plaintiff, and the plaintiff may:
(i) obtain a declaration as to the subsistence of the trust and a mandatory order requiring assignment of the legal title to the copyright subsisting in the film; and
(ii) as the owner of an equitable interest in the copyright subsisting in the film pending assignment of the legal title, obtain an interlocutory injunction against a person proposing to exercise any of the exclusive rights of the copyright owner, including the right to broadcast the film, without the licence of the plaintiff obiter, per Gummow and Hayne JJ; Gaudron J agreeing generally; Callinan J agreeing specifically on this point).
5. The relationship created by the ABC’s possession of a tangible item of property obtained in violation of Lenah’s right of possession, the exploitation of which would be to Lenah’s detriment and to the advantage of the ABC, was a fiduciary relationship and one of confidence. The circumstances were such that equity should attach a constructive trust, with the result that the ABC could not, in good conscience, use the film without Lenah’s permission. The Full Court was right to grant the interlocutory injunction (per Callinan J, dissenting).
This case has many important features, but from a privacy perspective the comments by Gummow and Hayne JJ (with whom Gaudron J agreed) about Victoria Park v Taylor and the possible emergence of a tort of invasion of privacy are of particular interest. Gummow and Hayne JJ endorsed the following observation made by Professor Morison in his 1973 Report on the Law of Privacy (published by the Parliament of NSW):
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.
Their Honours then reviewed the position under US law in relation to the tort of invasion of privacy. As the 1977 Restatement of the Law Second, Torts states, that tort recognises four distinct interests.
1. Intrusion upon seclusion: ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.’
2. Appropriation of name or likeness: ‘One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.’
3. Publicity given to private life: ‘One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.’
4. Publicity placing person in false light: ‘One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if:
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.’
Their Honours pointed out that under Australian law some of these four invasions would be actionable under recognised causes of action. However, they went on to state that categories 1 and 3, namely ‘the disclosure of private facts and unreasonable intrusion upon seclusion’, perhaps come closest to reflecting a concern for privacy ‘as a legal principle drawn from the fundamental value of personal autonomy’, the words of Sedley LJ in Douglas v Hello! Ltd  2 All ER 289 at 320. ... However, Lenah can invoke no fundamental value of personal autonomy in the sense in which that expression was used by Sedley LJ’. This was due to Lenah’s corporate status. They continued:
Lenah’s reliance upon an emergent tort of invasion of privacy is misplaced. Whatever development may take place in that field will be to the benefit of natural, not artificial, persons. It may be that development is best achieved by looking across the range of already established legal and equitable wrongs. On the other hand, in some respects these may be seen as representing species of a genus, being a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life, in the words of the Restatement ‘free from the prying eyes, ears and publications of others’. Nothing said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome. Nor, as has already been pointed out, should the decision in Victoria Park.
Kirby J responded to this analysis by stating that ‘[i]t may be that more was read into the decision in Victoria Park than the actual holding required’ and by pointing out that because of the general under-standing of the decision, ‘legislatures and law reform bodies have, for more than 50 years, proceeded on the footing that no enforceable general right to privacy exists in the law of this country’. He continued:
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. I would prefer to postpone an answer to the question. Upon my analysis, no answer is now required.
Callinan J also expressed some tentative views about Lenah’s claim for relief based upon an intrusion upon its privacy. His Honour stated:
It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether legislatures should be left to determine whether provisions for a remedy for it should be made.
Gleeson CJ did not deal with the argument in any detail, merely observing that:
the lack of precision of the concept of privacy is a reason for caution in declaring a new tort of the kind for which [Lenah] contends. Another reason is the tension that exists between interests in privacy and interests in free speech.
The result is that the Court has indicated, with some scepticism, that it is prepared to consider an argument that Australian common law should recognise a tort of invasion of privacy. However, a test case will need to be chosen carefully — it should be brought by an individual who is unable to succeed in a recognised cause of action and, ideally, the claim should not involve a media defendant. v
Patrick Gunning, Mallesons Stephen Jaques, Sydney.
 North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30; The Siskina  AC 210, followed; South Carolina Insurance Co v Assurantie Maatschappij ‘De Zeven Provincien’ NV  AC 24, distinguished; Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570, considered.
 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor  HCA 45; (1937) 58 CLR 479; Douglas v Hello! Ltd  2 All ER 289, considered.
 Hellewell v Chief Constable of Derbyshire  4 All ER 473, considered.
 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Lange v Australian Broadcasting Corporation  HCA 25; (1997) 189 CLR 520, considered.
Available at <http://www2.bailii.org/~jury/cases/EWCA/Civ/2001/2081.html>
The claimants were a mother, Mary, and her son, Alan (who suffered from mild cerebral palsy and required a litigation friend). In 1997 they visited Leeds prison to see their son/brother Patrick who was on remand. Unbeknown to the claimants, Patrick had previously been suspected of using and supplying drugs within the prison. The Governor had ordered all of Patrick’s visitors to be subject to a strip search. Mary and Alan were searched after entering the prison. The trial judge found that the searches conducted by the prison officers were contrary to the prison’s internal guidance in a number of respects including:
1. Alan’s penis was touched;
2. Mary and Alan were both for a time completely naked; and
3. Mary’s search was conducted close to an exposed window which looked out onto a street, although at no time was she touched by the prison officers.
As a result of the searches both claimants suffered differing degrees of psychiatric injuries for which they both claimed damages.
The trial judge (McGonigal J) came to the conclusion that a tort of trespass to the person, consisting of wilfully causing a person to do something to themselves which infringes their right to privacy, had been committed against both claimants. In addition he concluded that the tort of trespass to the person, consisting of wilfully causing a person to do something calculated to cause harm to themselves, namely infringing their legal right to personal safety, had been committed against the second claimant.
The trial judge rejected the defence of consent on the basis that the claimants were told that they could not have the visit if they did not consent and therefore such consent was not ‘real’. Further the claimant’s had consented to a search conducted in accordance with the internal procedures which had not been followed. The judge also rejected the defence of lawful justification on the basis that pursuant to s 3 of the Human Rights Act 1998 (UK), Rule 86 of the Prison Rules which permitted such a search had to be read in accordance with art 8 of the European Convention on Human Rights (ECHR) and as there were other less intrusive ways in which drugs could be discovered, the actions of the prison were not a proportionate response and therefore did not satisfy the requirements of art 8.2 ECHR. The judge awarded damages for the psychiatric injury and £1000 aggravated damages to each of the claimants. The Home Office appealed on all but the finding of the battery on Alan Wainwright.
Held, per curiam, allowing the appeal:
(1) the trial judge had erred in holding that the tort of Wilkinson v Downton  2 QB57 applied in these circumstances because the tort requires intentional harm or recklessness as to whether harm was caused and the judge did not find that the prison officers intended harm or were reckless;
(2) a tort of breach of privacy does not exist at common law in England and Wales (Kaye v Robertson  FSR 62 applied);
(3) section 3 of the Human Rights Act does not apply to events which took place before the coming into force of the act in October 2000 and so art 8 ECHR has no applicability in the present case;
(4) had a tort been committed the Home Office could not rely on the defence of consent because the claimants consented to a properly conducted search in accordance with the internal guidance and this did not take place; and
(5) had a tort been committed the Home Office could not rely on lawful justification because the manner in which the search was conducted fell entirely outside that permitted by Rule 86 of the Prison Rules.
This strange and fascinating case caused no little difficulty to a very strong Court of Appeal and the Court took the highly unusual step of granting permission itself for an appeal to the House of Lords. As may be seen, the case raises a number of legal issues. At present most attention has focused on the aspect of the decision concerning s 3 of the Human Rights Act (the retrospectivity of the Act is a matter of great contention and two criminal cases have already gone to the House of Lords on slightly different points). Section 3 is the ‘interpretive’ provision which states that all legislation must be interpreted in accordance with the ECHR where at all possible. However the most interesting aspect of the case is without doubt the Court’s pronouncements in respect of a tort of invasion of privacy. Both Mummery and Buxton LJ were of the view that the Court was bound by the decision in Kaye v Robertson. In doing so the Court refused to follow the obiter of Sedley LJ in Douglas v Hello Ltd  EWCA Civ 353; (2001) QB 967 which had suggested that a common law right to privacy now existed. Mummery LJ had grave doubts as to the appropriateness of the creation of such a tort stating at para 43:
As to the future I foresee serious definitional difficulties and conceptual problems in the judicial development of a ‘blockbuster’ tort vaguely embracing such a potentially wide range of situations. I am not even sure that anybody — the public, Parliament, the Press — really wants the creation of a new tort, which could give rise to as many problems as it is sought to solve. A more promising and well trod path is that of incremental evolution, both at common law and by statute (eg s 3 of the Protection from Harassment Act 1997), of traditional nominate torts pragmatically crafted as to conditions of liability, specific defences and appropriate remedies, and tailored to suit significantly different privacy interests and infringement situations.
Buxton LJ, in a lengthy and carefully considered judgment, felt that the matter should be left to the legislature. He stated that:
I have no doubt that in being invited to recognise the existence of a tort of breach of privacy we are indeed being invited to make the law, and not merely to apply it. Diffidence in the face of such an invitation is not, in my view, an abdication of our responsibility, but rather a recognition that, in areas involving extremely contested and strongly conflicting social interests, the judges are extremely ill-equipped to undertake the detailed investigations necessary before the proper shape of the law can be decided. It is only by enquiry outside the narrow boundaries of a particular case that the proper ambit of such a tort can be determined. The interests of democracy demand that such enquiry should be conducted in order to inform, and the appropriate conclusions should be drawn from the enquiry by Parliament and not the courts. It is thus for Parliament to remove, if it thinks fit, the barrier to the recognition of a tort of breach of privacy that is at present erected by Kaye v Robertson and Khorasandjian.
The fact that the Court so comprehensively rejected the (admittedly obiter) decision of Sedly LJ in Douglas is a great surprise as many lawyers and commentators felt that the tort was, because of Douglas, now in existence. The High Court of Australia in ABC v Lenah  HCA 63 has also left open the development of such a tort. The claimants are at present in the process of attempting to obtain public funding to take the case to the House of Lords. One of the main arguments that will be employed and which may well lead to a final recognition of a tort of breach of privacy is the so called ‘horizontal effect’ of the ECHR. In simple terms this states that as a court is a public body pursuant to the Human Rights Act and therefore has a requirement to act in accordance with the ECHR pursuant to s 6 of the Act, the requirement extends to providing new common law remedies against private individuals which are co-extensive with those now enjoyed against public bodies pursuant to the Human Rights Act. This subject was said to be too ‘large a question’ to resolve by the Court of Appeal at least without much fuller argument (per Buxton LJ at para 92). Those interested in this area may wish to read Hare I ‘Vertically Challenged: Private parties, privacy and the Human Rights Act’ European Human Rights Law Review (2001) Issue 5, 526. The final chapter in the strange case of Mary and Alan Wainwright has clearly yet to be written.
Ashley Serr, Mercury Chambers Leeds, England. Counsel for the Claimants <firstname.lastname@example.org>.
Privacy Act — review of determination of Privacy Commissioner — delay
Ms Ju travelled to Australia with her then husband, a resident of Hong Kong. She did not return to Hong Kong with her husband, and became Mr Gao’s de facto spouse. After Mr Gao and Ms Ju were estranged, Ms Ju gave birth to a child, claimed that Mr Gao was the father and sought child support payments from Mr Gao. This led to Mr Gao applying to the Family Court for access to the child. During the Family Court proceedings Ms Ju sought to leave Australia, and Mr Gao obtained an order restraining Ms Ju from taking the child overseas. Ms Ju and the child were intercepted in Sydney and prevented from leaving. Subsequently, the Family Court ordered a paternity test which revealed that Mr Gao was not the father of the child.
The Department of Immigration obtained information about the paternity of the child (although how this came about was not explained) and disclosed that information to the Registry of Births, Deaths and Marriages. Mr Gao complained to the Privacy Commissioner that this disclosure contravened the Privacy Act 1988 (Cth). On 18 July 2000 the Commissioner rejected the complaint, taking the view that the disclosure to the Registry was authorised by IPP 11.1(e).
On 4 October 2001 Mr Gao commenced proceedings in the Federal Court. Amongst other things, he sought an order that the Department of Immigration pay compensation for breach of the Privacy Act, and named the Minister and the Privacy Commissioner as respondents.
The proceedings against the Commissioner were taken to be an application for a review of the Commissioner’s decision under the Administrative Decisions (Judicial Review) Act 1997 (Cth) (AD(JR) Act). Ryan J dismissed the claim against the Commissioner, without prejudice to Mr Gao’s rights to apply for an extension of time in which to bring a claim under the AD(JR) Act, on the basis that the application was made more than 12 months after the Commissioner’s decision.
As to the claim against the Minister, Ryan J held that the claim:
cannot be made directly to this Court. It must be made to the Privacy Commissioner under s 36 of the Privacy Act. As already noted in relation to the Privacy Commissioner, a decision by that officer rejecting such a complaint is reviewable by this Court under the AD(JR) Act, but no right of review is exercisable against the agency which is alleged to have infringed the privacy of a complainant.
Ryan J’s reasoning in respect of the Commissioner is clearly correct — Mr Gao would not have standing to bring proceedings in the Federal Court under s 55A of the Privacy Act, as the purpose of those proceedings is to apply for an order to enforce a determination. Obviously, Mr Gao did not wish to enforce the Commissioner’s determination.
But Ryan J’s reasoning in relation to the claim against the Minister is another example of a case in which the Federal Court has failed to acknowledge its jurisdiction under s 98 of the Privacy Act to grant injunctions to restrain a person from engaging in conduct constituting a contravention of the Act. Ryan J’s statement that ‘no right of review is exercisable against the agency which is alleged to have infringed the privacy of a complainant’ is capable of misleading others as to the existence of this jurisdiction (in the same way that Finn J’s comments in Ibarcena v Templar  FCA 900; (2001) 7 PLPR 178 misled the Supreme Court of the ACT and the Full Federal Court). Given that Mr Gao was unrepresented and not capable of articulating the basis of his claims, it would have been helpful for Ryan J to note the existence of s 98 and find that the relief sought by Mr Gao against the Minister did not include an injunction. v
Patrick Gunning, Mallesons Stephen Jaques, Sydney.