[To be published in  Privacy Law and Policy Reporter, Vol
9, Issu 6]
Facts The High Court's decision Availability of Interlocutory Injunction Breach of confidence Conclusion: Where to Now?
The Legal Issues
The facts in Lenah raised a novel issue under Australian law: namely, the extent to which a media organisation can be restrained from publishing material obtained as a result of a trespass, in circumstances in which the organisation is not, itself, implicated in the trespass. In a number of cases, beginning with the decision of Young J in Lincoln Hunt Australia Pty Ltd v Willesee,Australian courts had held that an interlocutory injunction could be awarded to restrain the media from publishing material, such as video material, obtained by means of a trespass. In each case, the media organisation itself was the trespasser. The courts had held that an injunction could be awarded, but only in circumstances where publication of the material would be unconscionable. The application for an injunction in Lenah meant that the courts had to determine the extent to which the reasoning in the previous authorities could be applied in circumstances where there was no clear cause of action, such as trespass, available against the media organisation.
The majority of the Full Court of the Tasmanian Supreme Court extended the principles applied in the previous cases to hold that, absent an enforceable cause of action, an interlocutory injunction could be awarded to restrain publication where it would be unconscionable to use the `fruits' of an act of trespass. The central legal issue on appeal to the High Court, then, concerned the conditions for awarding an interlocutory injunction.
A number of submissions were made on behalf of Lenah, which endeavoured to force the facts within established legal principles. First, it was contended that, where material has been obtained as a result of a trespass, publication should be restrained where it would be unconscionable to publish the material on account of the media knowing that the material was obtained unlawfully, even in the absence of a known cause of action against the media. Secondly, upon analogy with the action for breach of confidence, it was claimed that information obtained as a result of a trespass should be treated as equivalent to confidential information, meaning that it is possible to restrain disclosure by a third party that knows the information has been acquired unlawfully. Thirdly, it was contended that Australian law recognises a tort of privacy, that the tort is available to a corporation and that an injunction can be awarded to a corporation to restrain a threatened breach of the privacy tort.
Following the submissions presented by Lenah, the various judgments can best be analysed in terms of what was said concerning the availability of an interlocutory injunction, the action for breach of confidence and the desirability of recognising an Australian tort of privacy.
Gummow and Hayne JJ, and separately Gleeson CJ, affirmed the existing state of authority. Although Gummow and Hayne JJ (Gaudron J concurring) held that an application for an interlocutory injunction must identify the legal rights sought to be protected, or the equitable basis for intervention, they acknowledged that the equitable jurisdiction to award an injunction was subject to development by the courts. At the same time, the joint judgment was careful to emphasise that the equitable basis for awarding an injunction must be developed in accordance with principle, and not arbitrarily. In particular, Gummow and Hayne JJ held that the equitable doctrine of `unconscionability' was not an independent equitable basis for awarding an injunction. Gleeson CJ explained that, as the main purpose of an interlocutory injunction is to preserve the status quo pending a final hearing, it would be illogical for an award to be made in the absence of an enforceable cause of action or established equitable basis for intervention. His Honour also agreed with Gummow and Hayne JJ that the notion of unconscionability, alone, is an insufficient basis for equitable intervention. In this respect, his Honour stated that:
The conscience of the appellant, which equity will seek to relieve, is a properly formed and instructed conscience. The real task is to decide what a properly formed and instructed conscience has to say about publication in a case such as the present.
Callinan J agreed that an underlying cause of action is usually necessary to support an interlocutory injunction, but held that, as the basis for awarding equitable remedies may develop over time, there was nothing to prevent an injunction being awarded to enjoin the use of property unlawfully obtained. In any case, his Honour held than, in the instant case, an injunction could be awarded to restrain publication on the novel basis that tangible property in the film was held on a constructive trust in favour of Lenah.
Of all the members of the High Court, Kirby J alone concluded that an interlocutory injunction could be awarded in the absence of an arguable legal cause of action or equitable basis for intervention. In support of this position, Kirby J pointed to what he considered to be the unqualified wording of the Tasmanian legislation conferring the power to award an injunction. His Honour also considered that, at the interlocutory stage, it could be premature for a plaintiff to formulate the precise question for final determination. Although concluding that an injunction was available, in this case, Kirby J held that the constitutional implication of freedom of political expression tilted the balance of convenience against an injunction being granted to restrain the media from publishing the material.
The most important of the recent English cases is the decision of the
English Court of Appeal in Douglas v Hello! Ltd.The
case concerned media coverage of the wedding of the actors, Michael Douglas
and Catherine Zeta-Jones. Douglas and Zeta-Jones had entered an exclusive
agreement with an English magazine for coverage, including photographs,
of their wedding. Despite precautions to prevent guests from taking photographs,
surreptitiously taken photographs were sold to a rival magazine. The actors
brought an action to restrain publication on the basis of, inter alia,
of confidentiality and breach of a right to privacy. On the balance of
convenience, injunctive relief was refused, largely on the basis that any
harm to the plaintiffs could be adequately dealt with by an award of damages.
Nevertheless, the Court was prepared to accept that, even though the photographer
was an intruder with no apparent relationship of confidence with the actors,
the plaintiffs had an arguable case based on a right to privacy, or an
expanded action for breach of confidence.
The Douglas case has been considered in a number of subsequent English decisions. In general, the subsequent decisions have expressed a preference for developing the action for breach of confidence to protect privacy over the recognition of a tort of privacy. The English approach should be compared with developments in New Zealand, where the courts have been willing to recognise distinct privacy torts, at least in relation to public disclosure of private facts, and probably extending to intentional intrusion into private affairs.
In Lenah, Kirby J was the only member of the High Court willing to accept, in principle, the argument that the publication of information obtained as a result of a trespass could be restrained upon analogy with confidential information. In doing so, his Honour accepted a principle of potentially broad application whereby a media organisation could be restrained from publishing material acquired illegally, tortiously, surreptitiously or otherwise improperly. In this sense, the judgment of Kirby J comes closest to approving the reasoning advanced in the Lincoln Hunt line of decisions. The majority of the High Court were not, however, prepared to accept this broad basis for intervention.
Gleeson CJ rejected the submission that information obtained as a result of a trespass ought to be treated, in every case, as the same as confidential information. According to his Honour, an injunction could be available to restrain publication of improperly or surreptitiously obtained information, but only if there was a breach of confidence. Gleeson CJ, nevertheless, supported an extension of the action of breach of confidence to protect private information in a manner similar to that apparently favoured by the recent English decisions. Thus, his Honour stated that:
If the activities filmed were private, then the law of breach of confidence is adequate to cover the case. I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained.
Drawing on the US tort of unreasonable intrusion into seclusion, Gleeson CJ proposed that information or conduct should be regarded as private if disclosure `would be highly offensive to a reasonable person of ordinary sensibilities'. In the instant case, however, his Honour concluded that there could be no breach of confidence because the information regarding the processing plant was neither confidential nor private in the requisite senses.
In their judgment, Gummow and Hayne JJ also held that there was no basis for treating information obtained as a result of a trespass as equivalent to confidential information. Although the joint judgment referred to the decision in Douglas, Gummow and Hayne JJ appeared to emphasise statements in that case supporting development of an actionable right to privacy over those dealing with the extension of confidentiality law. Given the trend of English authority, the joint judgment is strangely silent on the merits of extending the action for breach of confidence to protect privacy.
Instead, and somewhat unexpectedly, Gummow and Hayne JJ proposed a previously unsuspected basis upon which publication of material obtained by means of trespass might be restrained. Their Honours suggested that an equitable proprietary interest will arise in copyright in material, such as a film, if the material has been made `in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the maker to the plaintiff'. In such circumstances, the joint judgment maintains, a plaintiff may seek to restrain publication of the material in support of the equitable interest in the copyright. As ownership of an interest in the copyright in the film was not raised in Lenah, however, a definitive conclusion on this issue was not possible. Nevertheless, if the matter had been raised by the plaintiff, the fact that the material was neither confidential nor private would not have stood in the way of an interlocutory injunction. On the principles suggested by Gummow and Hayne JJ, the assertion of an equitable interest in copyright such as to restrain publication may incidentally protect privacy, but clearly extends beyond the protection of privacy interests to include the protection of commercial interests, such as the goodwill sought to be protected by Lenah. This potential new basis for restraining publication may well prove significant, as it seems to have the support of the majority of the High Court. In addition to Gummow and Hayne JJ, Gaudron J agreed with the joint judgment and Callinan J, while acknowledging that copyright law applied `somewhat uneasily' to the circumstances, expressly approved the principle.
Callinan J supported the proposition that publication of material obtained as a result of a trespass could be restrained, but on the basis of an extremely broad interpretation of the circumstances capable of giving rise to an equitable relationship of confidence. His Honour held that the ABC, by acquiring the film in circumstances in which it was aware that the film had been made by illegal means, was placed in a fiduciary relationship, or a relationship of confidence, with Lenah (as the person entitled to exclusive occupation of the processing plant). On this basis, Callinan J held that the ABC had obtained the video `unconscionably', and held the tangible property in the video on constructive trust for Lenah. His Honour therefore concluded that:
There is no reason why the claim in an appropriate case should not be framed as a claim for breach of confidence, being the misuse of a relationship arising out of the acquisition or retention or use by the defendant of a film made in violation of the plaintiff's right of exclusive possession of which the defendant knew or ought to have known and to which a constructive trust should be attached. The ultimate remedy, to which the plaintiff would be entitled, is delivery up of the film, and an account of any profits made from it.
The extension of the equitable doctrine of breach of confidence proposed by Callinan J is quite different from the extension of the doctrine to protect privacy interests apparently favoured by recent English decisions. With respect, the proposition that a third party holds tangible property (such as a video or photograph) that has been made by means of a trespass, on constructive trust for the person entitled to exclusive possession of the land, is a breathtaking extension of the doctrine of breach of confidence into completely uncharted territory. It appears extremely unlikely that the broad principles for restraining publication proposed by Callinan J - or, for that matter, by Kirby J - will ever find acceptance with a majority of the High Court.
Breach of privacy
The High Court in Lenah did not rule out the recognition of a tort of invasion of privacy under Australian law. The majority of the High Court, however, held that, in the circumstances of the case, there had been no invasion of privacy.
In the joint judgment, Gummow and Hayne JJ were careful to leave open the possibility of recognising an Australian tort of privacy. In particular, their Honours rejected the common assumption that the Victoria Park decision in any way precludes the development of a tort of privacy. Drawing on US authority, however, the joint judgment held that a tort of privacy would not be available to protect the commercial interests of a corporation such as, in the instant case, the goodwill of Lenah. On this point, Gummow and Hayne JJ concluded that:
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 ... Nothing said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome.
Gleeson CJ expressed a clear preference for extending the action for breach of confidence to protect privacy interests over recognition of a tort of privacy. His Honour was apparently reluctant to recognise a privacy tort for two main reasons. First, he referred to difficulties in defining the concept of privacy. Secondly, he was concerned with the potential problems that such recognition might create for reconciling tensions between privacy interests and interests in free speech. Underlying his Honour's reticence, however, appears a more general concern that recognition of a new cause of action might lead to an unprincipled development of the law. Nevertheless, unlike the joint judgment, Gleeson CJ was prepared to allow that a corporation may have privacy interests capable of protection, presumably under an extended action for breach of confidence. As explained above, his Honour held that, in this case, there could be no breach of the extended action for breach of confidence as the information recorded on the video was not private.
As Kirby J held that an injunction was available to restrain publication on other grounds, he considered it unnecessary to offer any conclusive views on the recognition of an Australian tort of privacy. His Honour was, nevertheless, cautious, stating merely that:
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.
Kirby J also refrained from deciding whether a corporation could have privacy interests capable of protection, but expressed some doubts on this point. In any case, his Honour considered that, in this instance, Lenah was not concerned with an invasion of privacy, but with the unlawful means by which the video had been procured.
Of all of the members of the Court, Callinan J appears the most favourably disposed to the recognition of an Australian privacy tort. For example, his Honour stated that:
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 the legislatures should be left to determine whether provisions for a remedy for it should be made.
Callinan J was apparently willing to accept that not only corporations, but also governments, may have privacy interests capable of protection under the common law. While expressing his views `tentatively', his Honour concluded that, if a tort of invasion of privacy were to be recognised under Australian law, it would have been committed by the unlawful intrusion onto the processing plant, and the obtaining of the video as a consequence.
The High Court's decision in Lenah may, nevertheless, come to be considered an important turning point in Australian privacy law. The main significance of the decision for the future of privacy law lies in the extent to which each of the judgments appeared to recognise, at least implicitly, that protection of privacy under Australian general law is, at present, inadequate. Unfortunately, the mélange of views expressed by the members of the Court in relation to the possible future development of the general law relating to privacy means that there is now a high level of uncertainty in this important area of the law. Consequently, we are in a kind of legal limbo, as we wait for an appropriate case to come before the courts, and to work its way through to the High Court.
What, then, can reasonably be said regarding the extraordinary collection of views expressed by the members of the High Court in this decision? Probably the most important issue to emerge from the case is whether the inadequacies in the general law protection of privacy should be addressed by an incremental extension of the action for breach of confidence, or by recognition of an Australian tort of privacy. For those aware of the difficulties of protecting privacy interests within existing causes of action (such as the existing action for breach of confidence, or defamation law), and of the recent developments under English law, this is hardly news. What is new is an apparent willingness, albeit a hesitant willingness, of the current members of the High Court to address this long-standing gap in our law.
In the Douglas decision, Keene LJ expressed the view that deciding between extending the action for breach of confidence and recognising a common law right to privacy `may be little more than deciding what label is to be attached to the cause of action'. With respect, this is far from self-evident. The form of protection adopted may well condition the future development of this area of the law. In sum, protecting privacy under the action for breach of confidence is likely to lead to a much more constrained development of the law than the recognition of a tort of privacy. Determining the appropriate form of protection of privacy, however, should depend primarily upon an analysis of whether the form of protection is appropriate for the interest sought to be protected, and not merely on whether one form of protection is more or less judicially adventurous than another.
Assuming that privacy is a social value that merits adequate legal protection, recognition of an Australian tort of privacy is a more appropriate form of protection than the protection of privacy interests under the action for breach of confidence. The relationships between the concepts of privacy, confidentiality and secrecy are complex. Sissela Bok, for example, has argued that privacy and secrecy are distinct concepts, secrecy referring to the intentional concealment of information, and privacy to protection against unwanted access. Anita Allen, on the other hand, suggests that confidentiality and secrecy are forms of privacy. According to Allen, confidentiality exists where `information is not disseminated beyond a community of authorized knowers', whereas secrecy is `information non-disclosure that results from the intentional concealment or withholding of information'.
If privacy is a separate, perhaps broader, concept than confidentiality or secrecy, then protecting privacy under confidentiality law is likely to have undesirable consequences. First, it may result in an unprincipled development of the equitable action for breach of confidence. In other words, the considerations to be taken into account in determining whether there is an invasion of privacy may well be quite different from the circumstances in which there is a breach of confidence. For example, there are already difficulties in determining whether a person who surreptitiously or accidentally acquires confidential information is under an obligation of confidence without adding further complexities, such as whether an accidental invasion of privacy is an actionable breach of confidence. Arguably, to the extent that breach of confidence is already relied upon to protect trade secrets, government information and personal information, too much is already expected of the equitable action. Secondly, the protection of privacy under the action for breach of confidence may inhibit the development of principles that are most appropriate to the interest desired to be protected. In other words, if Australian courts are to extend the general law to better protect privacy, it seems preferable to start with a `clean slate' rather than with the baggage of an existing cause of action, that has developed to protect other, quite different, interests. In this respect, protecting privacy under confidentiality law is likely to exacerbate the continuing uncertainty regarding the doctrinal basis of the action for breach of confidence, which may further hinder the development of appropriate principles for protecting privacy interests.
In Lenah, Gleeson CJ suggested that the difficulties in defining the concept of privacy argued against recognising a tort of privacy. With respect, this is not a serious argument. First, the undoubted difficulties experienced by philosophers in deriving a satisfactory definition of the concept of privacy hardly means that it is impossible to adequately define a form of legal protection. There are enormous difficulties in defining fundamental concepts such as `property' and `confidentiality', but this does not mean such interests are denied legal protection. Secondly, his Honour suggested that, in the absence of an accepted relationship of confidence, that private conduct or private information be treated as if it were confidential information. This strategy of extending confidentiality law, however, assumes the very thing said to stand in the way of recognising a tort of privacy: namely, that it is possible to develop an adequate legal definition of privacy.
As explained above, Gleeson CJ also pointed to the difficulties entailed in balancing privacy interests and interests in freedom of expression. These difficulties are endemic in any legal system that recognises individual rights or interests in privacy and freedom of expression. In establishing an appropriate balance between privacy and freedom, much must depend upon the context in which particular issues arise. For example, in determining the seriousness of a privacy intrusion, the factors to be taken into account would include the relative intimacy of the information, whether the plaintiff had sought publicity, the physical location of the intrusion, and the means employed by the intruder (including whether an intrusion was surreptitious). Similarly, determining the relative importance of free speech considerations involves considering a number of factors, including whether the plaintiff is a public figure and the nature of the information (for example, whether it is mere `gossip', or evidence of illegal or corrupt practices). There is clearly no precise legal formula for determining the `correct' balance. Nevertheless, in determining the balance to be struck, it would seem important that the interests at stake are at least expressly acknowledged, and weighed against each other.
In most liberal democracies, the paramount legal mechanism for balancing interests or rights such as privacy and freedom of expression is a bill of rights. Under Australian law, which conspicuously lacks a bill of rights, the protection of rights and freedoms is left largely to the vagaries of forcing a particular claim within an existing cause of action. In this respect, it seems remarkable that the central legal issue in a case that raises these issues, such as Lenah, should concern the availability of an interlocutory injunction in the absence of a recognised cause of action. Despite the way in which the legal issues are framed, the judgments of the members of the High Court are replete with assumptions, both explicit and implicit, concerning the relative merits of social values, and of institutions, especially the media. It is, after all, impossible for social values to be removed from a decision such as this.
Although a bill of rights is by no means a panacea, it would serve a number of important functions in relation to the future development of Australian privacy law. First, it would ensure that fundamental rights or interests, such as privacy, are at the forefront of judicial decision-making, rather than in the background. Secondly, it would provide a framework for the development of principles for balancing rights and interests that may come into conflict. Thirdly, and relatedly, it would provide a framework for the principled and consistent development of substantive areas of the general law, including the application of the substantive law to the media. For example, in most jurisdictions comparable to Australia, the starting point for considering legal issues relating to the media is the protection afforded freedom of expression. The limited Australian doctrine of implied freedom of political speech is no substitute for a more comprehensive form of legal protection. Finally, a bill of rights would establish clearer limits on the extent to which governments could intrude on individuals, including in relation to individual privacy.
Taking these considerations into account, it is suggested that the relatively
hoc, somewhat chaotic, reasoning of the High Court in the Lenah
is an example of what can happen in a legal system that refuses to take
individual rights seriously and that, as a result, has an inadequate legal
framework for recognising and protecting individual rights. While judicial
recognition of an Australian tort of privacy would improve the position
of individuals under the general law, then, an adequate legal regime must
await the extra-judicial development of a bill of rights. As this seems
unlikely, it would seem that protection of rights and freedoms under Australian
law is destined to be influenced indirectly by developments elsewhere.
By this, I am referring mainly to European human rights jurisprudence,
via it effect on substantive principles of English law, including confidentiality
law. In this sense, the relatively unsatisfactory reasoning evident in
the judgments in
Lenah is symptomatic of fundamental weaknesses
in the structure of Australian law, just as much as it is a reflection
of fundamental differences of opinion among the members of the current
 The arguments developed in this casenote are explored at greater length in David Lindsay, `Playing possum? Privacy, freedom of speech and the media following ABC v Lenah Game Meats Pty Ltd. Part 1: The availability of an interlocutory injunction to prevent publication' (2002) 7 Media & Arts Law Review 1; `Part 2: The future of Australian privacy and free speech law, and implications for the media' (2002) 7 Media & Arts Law Review 161. The author is grateful to the editor of the Media & Arts Law Review for agreeing to the use of some material in this article.
 (1986) 4 NSWLR 457.
 The cases included Emcorp Pty Ltd v ABC  2 Qd R 169 and Rinsale Pty Ltd v ABC (1993) ATR 81-231.
Lenah Game Meats Pty Ltd v ABC  TASSC 114. The majority consisted of Wright and Evans JJ.
 See, for example, North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30; The Siskina  AC 210; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380.
 As the joint judgment put it: `Decisions of equity courts are not a wilderness of single instances determined by idiosyncratic exercises of discretion. To utter the undoubted truth that in Australia equitable principles have a dynamic quality is not to deny that it is those principles that are decisive': (2001) 185 ALR 1 at 39.
 To this effect, Gummow and Hayne JJ stated that: `... the notion of unconscionable behaviour does not operate wholly at large as Lenah would appear to have it': (2001) 185 ALR 1 at 28.
 (2001) 185 ALR 1 at 14.
  2 All ER 289.
 See Home Office v Wainwright  EWCA 2081; Venables v News Group Newspapers Ltd  1 All ER 908; A v B (a company)  1 All ER 449; Naomi Campbell v Mirror Group Newspapers  EWHC 499 (QB).
 See Tucker v News Media Ownership Ltd  2 NZLR 716; Bradley v Wingnut Films  1 NZLR 415; P v D  2 NZLR 591; Rosemary Tobin, `Invasion of Privacy'  New Zealand Law Journal 216.
 (2001) 185 ALR 1 at 53. The Commonwealth Attorney-General, intervening, made a submission in support of this principle.
 In this respect, his Honour stated that: `The consequences of such a proposition are too large': (2001) 185 ALR 1 at 17.
 (2001) 185 ALR 1 at 12.
 (2001) 185 ALR 1 at 13.
 (2001) 185 ALR 1 at 29.
 (2001) 185 ALR 1 at 88.
 (2001) 185 ALR 1 at 89.
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.
 (2001) 185 ALR 1 at 38.
 His Honour stated that: `The problem for the respondent is that the activities secretly observed and filmed were not relevantly private': (2001) 185 ALR 1 at 13.
 (2001) 185 ALR 1 at 55.
 (2001) 185 ALR 1 at 95.
 The inadequacies of traditional English causes of action in this respect were first identified in the seminal article that resulted in the development of the US tort of privacy: Samuel D Warren and Louis D Brandeis, `The Right to Privacy' (1890) 4 Harvard Law Review 193.
  2 All ER 289 at 330.
 Sissela Bok, Secrets (Vintage Books, New York, 1983) pp 5-11.
 Anita Allen, Uneasy Access (Rowman & Lttlefield, Totowa NJ, 1988) p 24.