Chapter 5 - Obtaining Evidence, Protests

Plaintiffs in cases such as Booth v Bosworth (Chapter 12)and ABC v Lenah Game Meats Pty Ltd relied on unlawfully obtained evidence, gathered without the consent of the owner and/or occupier of the premises. For animal advocates, the collection of this type of material, which might include surveillance footage, is essential to stimulate public awareness and bring to light breaches of the law. However, for others, such as the owner or occupier of the premises, this type of evidence is considered akin to agri-terrorism. In these latter cases, owners or occupiers focus on matters such as reputational damage caused by dissemination of the material. The matter is complicated legislative provisions such as s 138(1) of the Evidence Act 1995 (Cth), which permit illegally obtained material to be admitted to court in limited circumstances. Moreover, activists have started using drones to capture footage of animal mistreatment, particularly at intensive agricultural facilities. The Australian government is considering using privacy regulation to prohibit the use of such drones. These issues have led to debate whether agriculture’s claims to privacy for commercial reasons should prevail over the public interest.

5.1 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Prepared by Jae-Hee Park

Court

High Court of Australia

Facts

Lenah Game Meats (‘Lenah’), the respondent, operated an abattoir in Tasmania that processed possum meat for export. An anonymous person or group of persons trespassed onto the premises and installed video cameras on the ceiling, which captured footage of the slaughter and processing of brush tail possums. This footage was then supplied to Animal Liberation Ltd (‘Animal Liberation’) who, in turn, passed it on to the Australian Broadcasting Corporation (‘ABC’), the appellant. On 16 March 1999, the ABC notified Lenah that it intended to broadcast this footage on its current affairs program, the 7:30 Report.

On 29 March 1999, Lenah commenced proceedings against the ABC and Animal Liberation. They sought urgent interlocutory injunctive relief to prevent the publication of the footage, claiming that the publication of the footage would cause substantial damage to their business.

This was rejected by Justice Underwood in the Supreme Court of Tasmania who held that there were insufficient grounds for interlocutory injunctive relief. Lenah successfully appealed to the Full Court of the Supreme Court of Tasmania and an interlocutory injunction was granted restraining the ABC from publishing the footage. In 2001 the ABC appealed to the High Court of Australia seeking to have the interlocutory injunction lifted.

Issues

• Whether interlocutory relief should have been awarded
• Whether the information contained in the footage was confidential
• Whether it would be unconscionable to publish material illegally obtained through an act of trespass
• Whether a tort of privacy was recognized in Australian law, and whether publication of the footage would amount to an invasion of Lenah’s privacy

Decision and Reasons for the Decision

The appeal was allowed. The majority of the High Court held that, in the circumstances, interlocutory relief was unavailable and the decision of the Full Court of the Tasmanian Supreme Court was set aside. The main judgment was delivered by Justices Gummow and Hayne with whom Justice Gaudron concurred. Chief Justice Gleeson and Justice Kirby agreed that interlocutory injunction should not be awarded, despite reaching their conclusions on different grounds. Justice Callinan dissented.

Awarding an interlocutory injunction

Under s 11(12) of the Supreme Court Civil Procedure Act 1932(Tas) the Supreme Court of Tasmania has power to grant an injunction wherever it appears “just and convenient” to do so. Previous authorities such as Siskina (Cargo Owners) v Distos Compania Naviera SA [1979] AC 210 and Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 provide that an injunction can be awarded in equity where there is a recognised legal cause of action and when there is an established equitable basis for the intervention provided by an injunction.

Justices Gummow and Hayne (Justice Gaudron concurring) affirmed previous authorities and added that an application for an interlocutory injunction must identify those legal rights sought to be protected or the equitable basis for intervention. Importantly, Gummow and Hayne JJ held that the equitable doctrine of “unconscionability” could not be used as a basis for awarding an injunction. Gleeson CJ agreed on similar grounds.

Callinan J, however, held that, whilst a legal cause of action was necessary in granting an injunction, in this case an injunction could be awarded to restrain the use of the footage as it had been obtained unlawfully.

Kirby J was the only member of the High Court who concluded that an interlocutory injunction could be awarded in the absence of an arguable legal cause of action or equitable basis for intervention. While he found that an injunction was available in this case, His Honour held that the constitutional implied freedom of political expression tilted the balance of convenience against an injunction being granted to restrain the media from publishing the material.

Breach of confidentiality

Justice Kirby alone accepted the argument that the publication of information which had been obtained through an act of trespass could be restrained as a result of breach of confidential information. The majority of the High Court, however, did not agree with this proposition. The majority of the High Court found that the activities which had been filmed as a result of trespass on private property were not confidential, on the basis that the operations of the abattoir were licensed by a public authority.

Chief Justice Gleeson held that not all information obtained as a result of trespass could be treated as confidential information. He added that all the circumstances surrounding the production of the film needed to be considered. In addition His Honour stated that: “If the activities filmed were private, then the law of breach of confidence is adequate the cover the case”. His Honour suggested that private matters were those which if disclosed “would be highly offensive to the reasonable person of ordinary sensibilities”. He concluded that in this case, there was no breach of confidence, as the information was neither private nor confidential.

Unconscionability

The majority of the Court consisting of Justice Gummow and Hayne (Justice Gaudron agreeing) found that a new cause of action based on the unconscionable conduct in question could not be established. Chief Justice Gleeson came to a similar conclusion.

Justice Kirby held that the Supreme Court could grant an injunction if the information was obtained through illegal, tortious, surreptitious or improper means and if the use of the information would be unconscionable. Nevertheless, he added that the unconscionable use of the information needed to be weighed up against the freedom of political communication and the public interest.

Justice Callinan held that an injunction should be granted, as the conduct of the ABC was unconscionable.

Privacy

The Court considered whether a right of privacy or a tort of privacy could be developed to justify Lenah’s claim that an injunction should be issued due to invasion of privacy. It was previously established by the High Court of Australia in Victoria Part Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 that a cause of action for breach of privacy does not exist in Australia.

As stated above, Chief Justice Gleeson found that the information was not private in nature, and this stance did not change simply because the case concerned events taking place on private property or because the information was obtained in a tortious way. Accordingly, his Honour concluded that Lenah should not be issued an injunction. Justices Gummow and Hayne (Gaudron concurring) stated that corporations should not be covered by the evolving protection afforded by privacy law. Their honours primarily reached this conclusion because corporations lack “the sensibilities, offence and injury…[which] provide a staple value for any developing law of privacy”.

Justice Kirby refrained from considering whether a corporation should be entitled to any protection of privacy, or whether a tort of privacy exists or should be developed in Australia.

Justice Callinan suggested that privacy rights were closely tied with property rights and that the manner in which the footage was obtained was sufficient to invoke privacy protection in this case. In addition, His Honour did not rule out that corporations would be able to enjoy the same rights of privacy as a natural person.

Significance of the Case

The main significance of this case stems from the High Court’s discussion about the development of Australian privacy laws. While no concrete conclusion was reached, the judgments did highlight inadequacies in the current law with respect to protecting the privacy of individuals and corporations. Importantly, Justices Gummow and Hayne held that the decision in Victoria Part Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 would not encroach on the development of a common law right of privacy in Australia. The majority was of the view that if a new action for invasion of privacy were to be developed in Australia, it should be limited to protecting the privacy of natural persons. However, the varying approaches taken by the judges about the possible future of privacy laws suggest that there is inconsistency and uncertainty in the development of this area of law. In addition, the case illustrates the difficulties associated with balancing privacy, the public interest and freedom of expression.

5.2 Mississippi State University and the IAMS Company v PETA (No 2006 – CA – 02120 –SCT

Prepared by Christopher McGrath

Court

Supreme Court of Mississippi

Facts

People for the Ethical Treatment of Animals, Inc. (‘PETA’), the respondent, filed a complaint in the Chancery Court of Oktibbeha County, seeking disclosure regarding animal research being conducted by the Iams Company (‘Iams’), a dog and cat food brand. The research had been approved by the Institutional Animal Care and Use Committee (‘IACUC’) of Mississippi State University (‘MSU’), the appellant.

PETA sought an order to obtain data and information given to the IACUC by MSU with respect to in vivo research that was being undertaken by Iams. In order to obtain the Committee’s approval for the research, MSU had submitted information about animal research protocols to the Committee in accordance with federal law.

MSU responded to PETA’s claim with the affirmative defence that the documents PETA sought constituted trade secrets as well as “confidential commercial and financial information of a proprietary nature” and were therefore exempt under the Mississippi Public Records Act. Iams added that the information sought was also exempt from disclosure because the information was subject to confidentiality agreements between itself and MSU. As evidence, Iams submitted an affidavit from Mr Carey, Director of Technical Communications for Iams, which stated that the information requested would reveal intellectual property and development strategies for future products.

After reviewing the documents in private, the Chancellor determined that Iams and MSU failed to “articulate, particularise or specify a justification so as to establish with specificity that the protocols were a trade secret”; however, certain documents categorised as “experimental design” were deemed trade secrets. Furthermore, the Court held that the protocols were not subject to any confidentiality contract between the two parties. Finally, the Chancellor ordered that any personal information about staff and documents relating to experimental design be erased and that the remainder be disclosed to PETA.

MSU and Iams jointly appealed the decision to the Supreme Court of Mississippi.

Issues

• Whether the information sought by PETA should have been deemed protected from disclosure

Decision and Reasons for Decision

The judgment was handed down by Randolph J of the Supreme Court of Mississippi Supreme Court, with the majority (Smith, Waller, Carlson, Dickinson and Lamar JJ) concurring. The Court found that the contract between MSU and Iams, as well as Mr Carey’s affidavit, provided sufficient evidence that the information sought was developed pursuant to the contract between MSU and Iams, and that Chancellor erred in deciding otherwise.

Furthermore, the Court found that the IACUC protocol forms requested by PETA were “public records” within the meaning of ss 25-61-3(b) of the Mississipi Annotated Code (Rev 2006) (‘the Code’). However, ss 25-61-9 of the Code stated that public records furnished by third parties containing trade secrets or confidential information were exempt from being disclosed in the public domain. The Court found that the Carey affidavit provided undisputed evidence on this point, and that PETA had failed to adduce sufficient evidence to rebut the exemption. Accordingly, the majority found that the protocols were exempt from the Mississippi Public Records Act and the decision from the Chancery Court was reversed.

Diaz PJ provided a dissenting opinion, finding that the information PETA sought did not constitute trade secrets or commercial and financial information of a proprietary nature. His Honour gave several reasons for this conclusion. First, the determination of the nature of the information was a question of fact rather than law and was, therefore, unable to be overturned by the Supreme Court (City of Pascagoula v. Scheffler, 487 So. 2d 196, 200 (Miss. 1986)).Second, the information requested in the blank protocol form provided by PETA related to the discomfort, distress and pain experienced by the animals; it could not be considered proprietary information with independent economic value. Finally, his honour found that the protection provided by the exemption extended only to trade secrets and confidential commercial and financial information made under a contract; as the Code did not exclude all types of information developed under a contract, the mere fact that the information was produced as a result of a contract would not be sufficient to immunise it. Diaz PJ condemned the Court’s decision to reverse the judgment on the basis that PETA failed to adduce evidence challenging the nature of the information requested, as absent authorisation, PETA lacked access to such information.

Significance of the Case

This case illustrates the way in which entities conducting animal experimentation may insulate themselves from public scrutiny by claiming intellectual property rights. In doing so, they limit the transparency of their processes which may obscure animal cruelty. It also highlights how the treatment of research animals is further concealed by the reliance upon internal review committees to safeguard their interests, as opposed to external enforcement mechanisms.