ABC v Lenah Game Meats Pty Ltd (2001) 185 ALR 1 (fruits of the trespass)
•    Per Gleeson J: the law of breach of confidence provides a remedy where the nature of the information obtained by the trespasser was such as to permit the information to be regarded as confidential. But, if that condition was not fulfilled, then the circumstance that the information was tortiously obtained in the first place was not sufficient to make it unconscientious of a person into whose hands that information later came to use it or publish it
•    Compare this case to Lincoln Hunt v Willessee where the camera crews entered premises with cameras rolling and whose conduct amounted to a trespass, but in this case the ABC was provided with the footage which was obtained by a separate party
o    In this case the party publishing the material (ABC) was not a party to the trespass; if they were then the court would have to consider the question postulated by Young J in Lincoln Hunt where he held that prima facie, if a film is taken by a trespasser, made in circumstances involving private premises in respect of which there is some evidence that publication of the film would affect goodwill, then the case is one where an injunction should be seriously considered
•    Per Gummow and Hayne JJ: in Lincoln Hunt Young J stated that the court has power to grant injunctions to prevent the publication of footage taken by a trespasser even though no confidentiality is involved. The court will only intervene if the circumstances make the publication unconscionable.
o    Held that the maker of the film may be regarded as a constructive trustee of the copyright of the footage for the benefit of the plaintiff conferred by s 98 of the Copyright Act and as a result it would be inequitable for the maker of the film to broadcast the footage against the wishes of the plaintiff and the broadcast would be subject to an interlocutory restraint

Private nuisance
•    Occurs where the defendant does not directly go onto the property but through their indirect conduct they cause an interference with land

Victoria Park Racing v Taylor
Facts: the plaintiff operated a race course business at Victoria Park where they charged patrons a fee to go onto the property where they put up billboards which informed patrons of upcoming races. Mr Engles owned property adjacent to VP where he entered into a contract with T to build a viewing tower that faced the property. Every day, E went up the tower and provided a commentary which was broadcast by the Commonwealth Broadcasting Corporation. VP decided they wanted to stop the broadcasts and they brought proceedings against all defendants. They argued a number of bases; that a tort of unfair competition ought to be recognised (refused), that there had been copyright infringement (refused), the principle cause of action argued was whether the conduct of the defendants amounted to the tort of private nuisance. In this case, there was a division of opinion between the majority and minority as to the types of interests protected by tort.

Found: in order to make out a claim, the interest must be recognised at law to be protected by the tort of private nuisance and not every incidence of protection is recognised and protected by the tort. One of the most obvious examples of an unprotected interest is that sought to be protected in this case. The majority stated that the common law doesn’t recognise that freedom from view/inspection and privacy are interests protected by private nuisance. The law has been that nuisance does not protect freedom from view or inspection or privacy. If someone can look into your property from their property they commit no nuisance because freedom from view/inspection and privacy are not legally recognised interests for the purposes of private nuisance. The majority took an absolute view of the particular issue and because they did so they stated that there was no cause of action that VP could have against T.

Minority: took a less absolute view and accepted that the starting point was that generally private nuisance doesn’t protect against freedom of view/inspection or invasion of privacy but this was not an absolute prohibition. They went through the cases and noted examples in which conduct which was of the nature of infringement of freedom of view etc gave rise to liability in private nuisance (resulting in interlocutory injunctions to restrain the conduct). However, there may be circumstances where the quality of the defendant’s conduct is such that the general rule should be derogated from.

Raciti v Hughes (1995) 7 BPR 14, 837
Facts: R lived in a property and H lived on an adjacent property. This was an ex parte case and so have to take R’s allegations with a grain of salt. R argued that H had engaged in an irregular form of conduct. H had set up floodlights and video cameras which were directed at R’s backyard and had attached to them motion sensors such that when anyone moved in R’s backyard the lights would come on and the cameras would start. R wanted an interlocutory injunction to restrain H and Young J had to decide whether there was an actionable private nuisance

Young J: freedom of view are not protected by the tort but the reasoning of the minority judges suggested that there may be circumstances in which the quality of the defendant’s conduct could transform the case to where relief could be granted. In this case, he accepted that the conduct suggested that they had engaged in the crime of ‘watching and besetting’ and the quality of the defendant’s conduct in the circumstances took it outside the general view that freedom of view etc was protected and issued an ex parte injunction.

Limitations of trespass and private nuisance as a means of privacy protection
•    The tort has to occur in relation to land in which you have a possessory interest; if not on your land at the time the trespass occurs
then both of the torts will be useless.
•    The torts are land-based causes of action and founded on you having a possessory interest in the land and the tort occurring with respect to the land

Defamation and Privacy
•    Not as important because the requirement of public interest is not required for a defence. If defamatory imputations can be extracted from the publication then would have a cause of action for defamation.
•    Compare Ettingshausen with a Canadian case in which a politician sued a newspaper for a photograph and indicated that the politician was balding and there was commentary which exposed politician to ridicule. He instituted proceedings against the newspaper claiming defamation and the newspaper successfully defended this on the defence of substantial justification on the fact that it was substantially true and had photos to prove it. This may have been differently decided if it had occurred in NSW

Privacy: overlaps with negligence and defamation

“GS” v News Limited (1998) Aust Torts Reports 81-446 (overlapping of privacy with negligence and defamation)
Facts: GS was a witness before the medical tribunal of NSW in which her former psychiatrist was being disciplined. A photo was taken of GS on the arm of her husband outside the Tribunal. When the photo was published the face of GS was pixelated but her husband’s was not which she claimed allowed for the disclosure of her identity. GS relied on a range of causes of action: defamation would not be useful because it was noted that what GS was complaining about was not false statements but true statements which disclosed her identity which should have been statutorily protected.

Levine J: found that the Medical Practice Act 1992 didn’t confer a private cause of action on the part of GS and therefore breach of statutory duty was unarguable. In the circumstances, GS was allowed to plead a cause of action in negligence but the other cause of action relied upon was a tort of invasion of privacy. GS claimed that under the relevant legislation she had been guaranteed anonymity as a witness and this had been undermined by the effective disclosure of her identity and amounted to an invasion of her privacy.

Found that there wasn’t an arguable case for invasion of privacy. The case needs to be read in light of ABC v Lenah Game Meats and also another case where the ABC is being sued by a woman who was named as the victim of sexual assaults in 3 instances which the reporter ought to have recognised that is strictly forbidden. The woman is arguing a tort of invasion of privacy that she has been deprived of anonymity which the legislation guarantees and she has a cause of action as a natural person. GS would therefore be decided differently today in light of ABC v Lenah Game Meats

Covert surveillance and images obtained under a search warrant

Donnelly v Amalgamated Television Services Pty Ltd Pty Ltd (1998) 45 NSWLR 570
Facts: cameras were taken on a raid; D was taken in his underwear and Channel 7 broadcast the footage on one of their current affairs programs. D sought an interlocutory injunction restrain the broadcast of this.

Hodgson J in Eq: granted the injunction on the basis that the police footage and the disclosure of the footage suggested an abuse of power on the part of the police and the knowing participation of that abuse of power by Channel 7. There are arguments made by H which are useful to note in passing. There was an issue of whether the footage was in the nature of confidential information or whether it should be viewed as private. The distinction is vital because the approach in England is to treat invasions of privacy by reference to breaches of confidence. Suggested that there is more than a nuance of difference between privacy and confidentiality as concepts and not everything described as private in confidential. Also, H notes what could be considered ‘private’. It is consistently recognised that what is really subject to the injunction is that which is not observable from the street and anything in terms of the footage reflecting what could in fact be observed is not private and what was private was the footage taken inside the house in areas not exposed to public view. H’s reasoning in this case reinforces the restrictive nature of what can be characterised as private, which is taken up by Gleeson J in ABC v Lenah Game Meats. When looking at a case for invasion of privacy, must consider the various tortious causes of action a plaintiff could possibly have.

BREACH OF CONFIDENCE

•    See Coco v Clark for the classic modern statement for the elements of the cause of action for breach of confidence:
o    Needs information which is confidential in nature
o    Must be imparted by the plaintiff tot the defendant in circumstances where the defendant is known of the knowledge of the fact of the confidentiality
o    The defendant then needs to disclose the information to the detriment of the plaintiff
•    Can breach of confidence be deployed to protect information that may be disclosed through the press
o    Leading case: Argyle v Argyle
-    Duke and Duchess were getting divorced and duchess decided she would disclose information about her ex-husband in the newspapers
-    Court accepted that the disclosure of marital secrets had the quality of confidence about it; parties would be aware that they were under an obligation of confidence and the disclosure of secrets was detrimental in this case to the Duke of Argyle
-    Indicates that there is the possibility for the application of breach of confidence in media cases; also note, from this case, that here it was clear that the nature was confidential (because the nature of the relationship was marital); the less stable the relationship is, the less likely courts will find that the information was imparted in circumstances where both parties should be fixed with knowledge that the relationship imparted confidence

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