Invasion of the privacy
In this Cross-Appeal, the main issue for determination before Court is whether the actions of the New England Animal Liberation Foundation ltd. (Cross Respondent) gave rise to an action for invasion of the privacy of Bowie Jarilaro and Jarnaby Boyce, both trading as Jumbuck Wool Company (the Cross-Appellants), which tort ought to be redressed by the Court.
From the onset, the Cross-Appellants contend that they, at all material times, had privacy concerns capable of protection as a matter of an emergent tort of invasion of privacy. Without a doubt, this Court in the case of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 pronounced itself on the point that there was no such cause of action in Australian law as an action for the intrusion of privacy. However, this Court also in the more recent case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 observed that the holding of the Court in the former case did not necessarily preclude the development of such a law in the future. The latter decision’s general tone was that a novel action on breach of privacy ought to be developed as a matter of developing Australian jurisprudence and as a matter of exigency.
It is not in dispute that the Cross-Respondent’s conduct was in breach of the tort of trespass by its actions of intruding the Cross-Appellants’ air space. This position was established in LJP Investments V Howard Chia Investments (1989) 24 NSWLR, which is a persuasive authority to this Court. In this case, the Defendant’s actions to erect a scaffolding that extended into the Plaintiff’s property were considered to constitute trespass to air. In a similar vein, the activities of the Cross-Respondent are trespass to air.
The incidence of trespass and the illegal filming of the Cross-Appellants’ activities are prima facie evidence of intrusion of their privacy. Whether or not the causal effects of this intrusion can be remedied by this Court as a matter of a tort or otherwise is the concern of this Appeal.
In the above Lenah Game Meats case, the Court, in considering whether the information was capable of the protection as a matter of privacy, addressed the issue of the legal personality of the organisation. Lena Game Meats Pty Ltd. was a corporation. This Court opined that the concept of privacy could only apply to instances involving natural persons, as opposed to artificial persons. On that ground, the Court could not find that the corporation’s privacy was intruded due to lack of humanly attributes capable of such protection.
However, this case is distinguishable from the Lenah Game Meats case. The Cross-Appellants are natural persons engaged in the private husbandry of their animals. Therefore, the argument that precluded Lena Game Meats Pty Ltd from the benefit of protection cannot be applied in this case.
The details of means and ways through which the Cross-Appellants carry on their business were private information. That is not to say that they would have kept this information secret had the Cross-Respondent sought the consent of the Cross-Appellants before documenting this information. The covert and unlawful nature of the filming and subsequent divulging of this information denied the Cross-Appellants an opportunity to shed light on why they did what they did, and how they did it. This would have helped in putting the information divulged into context. As a result, they were condemned unheard in the Court of public opinion, thanks to the illegal activities of the Cross-Respondent. Their human dignity was muddied as they were portrayed as being insensitive to animal rights. Additionally, their inherent economic right to earn a living was shattered.
In conclusion, the Lena Game Meats case laid down the path that this Court would follow in recognising a tort for breach of privacy. This Court observed in Paragraph 43 of the judgment that the holding, in that case, would have been different if the Respondent, Lena Game Meats Pty Ltd., had been an Individual or a partnership. In the present case, the Cross-Appellants are individuals and conduct their business as a partnership. Hence, they qualify for protection under the tort of breach of privacy, as mooted in the Lena Game Meats case. The Cross-Appellants, thus, urge this Court to allow their Cross-Appeal with costs and appropriately redress them as this Court deems fit.