ABC v Lenah Game Meats Pty Ltd

The High Court of Australia considered an appeal by ABC (the appellant) against a decision of the Full Federal Court concerning an injunction sought by Lenah Game Meats Pty Ltd (the respondent). The respondent, a possum processing company, sought to prevent the ABC from broadcasting footage of its operations, which had been secretly filmed by an unknown third party. The respondent alleged that the filming and threatened broadcast constituted breaches of confidence and potentially other tortious conduct.

The central legal issues before the High Court were whether the respondent had established a right to equitable relief in the form of an injunction to restrain the broadcast of the footage, and if so, on what grounds. Specifically, the Court had to consider the nature of the respondent's alleged proprietary or possessory rights in the footage, the applicability of the tort of breach of confidence in circumstances where the information was obtained by a trespasser, and the balance of competing public interests, including freedom of the press and the public's right to know.

The Court's reasoning, particularly that of Gleeson CJ, focused on the nature of confidence and the requirements for establishing a breach. Gleeson CJ noted that the equitable action for breach of confidence traditionally requires the information to be imparted in circumstances importing an obligation of confidence. However, the Court also acknowledged the potential for extending equitable principles to protect information that, while not imparted in confidence, is nonetheless private and confidential in nature. The Court grappled with the difficulty of applying existing legal frameworks to a situation where the information was obtained unlawfully by a third party and then sought to be published by a media organisation. Kirby J, in a separate judgment, explored the broader implications for privacy and freedom of expression in Australia.

Ultimately, the High Court allowed the appeal and set aside the injunction granted by the Full Federal Court. The majority found that the respondent had not established a sufficient basis for equitable relief, particularly in relation to the acquisition of the information by a trespasser. The Court emphasised that the law of confidence was not designed to protect against the consequences of unlawful acts by third parties, and that the respondent had not demonstrated a proprietary right or a sufficiently established obligation of confidence that would warrant an injunction against the ABC.