From: lucas.cloveralcolea@monash.edu
Sent: Monday 15 June 2026 04:45
To: obligations@uwo.ca
Subject: Farm Transparency International Limited v. The Game Meats
Company of Australia Pty Ltd - Constructive trusts over copyright in videos
taken by trespassers and other things
Hi all,
As I am
currently going through the joys of marking, I thought I'd share a short note
about the (in my view) weird and wonderful case of Farm
Transparency International Limited v. The Game Meats Company of Australia Pty
Ltd, which the High Court of Australia has already heard oral argument in
and where judgment is reserved. The case involves, shall we say, interesting
facts. To cut a long story short, an NGO, Farm Transparency, repeatedly snuck
onto (and thereby trespassed) on an abattoir's land and installed cameras which
recorded the process of animal slaughtering. Subsequently, they sent this
footage, or 14 minutes of it, to a regulator, which did not respond, and then
to a local TV station, before posting it online. Game Meats sought an
injunction, which was granted, requiring the footage to be taken down and
matters then proceeded in the Federal Court of Australia. At first instance,
Game Meats were awarded substantial damages for trespass, but did not succeed
in their claim for an injunction, nor a constructive trust over the copyright
in the videos, which would in turn allow them to destroy the footage, as well
as any copies, and restrain publication. The primary judge, correctly in my
view, noted that imposing a remedial constructive trust in these circumstances
would be too bold a step for a first instance judge to take, and was not (at
least not clearly) supported by existing authority. The matter was appealed to
the Full Court, which took a very different view, upholding the damages claims,
but also imposing a remedial constructive trust on the grounds of
unconscionability, because 'the moral calibre of the wrongdoing in the present
case puts it on a similar moral plane to cases where a constructive trust is
imposed on a fraudster or thief, or on the recipient of a payment which is
known to be mistaken' ([28]). Such a trust was also held to justify consequent
relief, namely ([43]):
an injunction as sought by GMC permanently
restraining FTI from publishing (other than to the Department) any of the
images (and copies thereof) in question. That injunction is the natural
consequence of GMC's beneficial ownership of the copyright in the images, and
its right to call for an assignment of the copyright. Indeed, the analysis in
ABC v Lenah (at [102]) was prompted by the issue as to the legal basis for the
availability of an injunction restraining publication of materials obtained by
trespassers, which was considered by Young J in Lincoln Hunt Australia Pty Ltd
v Willesee (1986) 4 NSWLR 457 at 463 4. Second, FTI should be ordered to assign
in writing to GMC the copyright in the video images which FTI obtained, and in
default of such assignment, a Registrar of the Court be directed to execute
such a transfer on FTI's behalf pursuant to r 1.37 of the Federal Court
Rules 2011 (Cth). Third, there should be orders for the permanent
deletion of all such images, together with filing and serving an affidavit
attesting to such deletion and disclosing the details concerning the provision
of the images to others. Fourth, as an adjunct to those remedies, it is
necessary to prevent prejudice to the proper administration of justice to make
a suppression and non-publication order ...
Although
it's true that there was some suggestion in ABC V Lenah Game Meats (2001)
208 CLR 199 that a constructive trust over copyright could be granted
where there were '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', this was merely sketched as a possibility given their
Honours' statement that 'it may then be inequitable and against good conscience
for the maker to assert ownership of the copyright against the plaintiff and to
broadcast the film' ([101]; see to [103]). Moreover, an earlier NSWSC case, Windridge
Farm Pty Ltd v Grassi [2011] NSWSC 196 had interpreted these comments
restrictively, refusing to impose a trust in circumstances very similar to Game
Meats, noting (at [129]) that 'Apart from the unlawfulness of the entry
onto the premises by the defendants, the evidence does not establish the type
of circumstances to which Gummow and Hayne JJ in Lenah Game Meats (supra)
adverted. These circumstances include matters which constitute either an
invasion of the legal or equitable rights (such as the right to
confidentiality) of the owner or occupier of premises or facts that establish a
breach of any equitable obligation operating between (in this case) the
plaintiff and the defendants at the time the film and the photographs were made
or taken.' The Full Court distinguished Windridge, but the basis for
doing so was not, with respect, self-explanatory.
More
generally, it's fair to say that the Full Court's reasoning for imposing a
remedial constructive trust in these circumstances is a little unclear, it was
conceded that the video did not contain any confidential information, so there
was no ability to sue for breach of confidence, and it was also unclear that
Farm Transparency were seeking to make any money from the video (it seems not),
nor was there a breach of privacy because this did not presently exist at
general law, and any cases suggesting its development explicitly excluded
corporate plaintiffs such as Game Meats from its ambit (so too the subsequent
statutory privacy tort), and any of the relevant balancing factors for such a
right were, in any event, not discussed by the Court (similar issues existed
with any reputational rights at issue). Consequently, and considering also that
the damages claims for trespass and contumelious invasion of the plaintiff's
property rights were upheld, it wasn't really clear what 'wrong', if any, the
constructive trust was responding to. Interestingly, the Full Court also did
not appear to consider the requirement for such trusts to be imposed only if
necessary in the interests of justice, and as a last resort. Unsurprisingly
then, the Full Court's decision was appealed to the High Court, which heard the
appeal early last month, with the result that we will hopefully get judgment
and reasons sometime this year. It does seem that this will require the court
to explicitly address, and not just in obiter, the requirements for
imposing a remedial constructive trust, about which we haven't had much
guidance since the obiter comments in John Alexander's Clubs Pty
Limited v White City Tennis Club Limited [2010] HCA 19. It might also
provide some further guidance on the outer limits of remedial discretion, given
that the overarching justification for the remedial constructive trust in the
case appears not to be existing doctrine, or legal rights, but rather concerns
about 'moral calibre of...wrongdoing'. More general property law rights might
also be implicated, given that allowing landholders to make such claims
potentially generates novel proprietary rights in preventing others from
recording videos/taking photos/and possibly making any IP rights, on their land
without permission where this follows a trespass, or some other legal wrong.
Joshua Yuvaraj has written elsewhere about how the decision may also cause
problems for the statutory copyright scheme.
If it s of
interest, my colleague Brandon D Stewart and I have written a case note in the UNSW
Law Journal Forum where we critique the Full Court's decision, and try and
sketch out a more restrictive response to the legal issues in the case
(catchily entitled Farm Transparency International Ltd v The Game Meats
Company of Australia Pty Ltd: Two Wrongs Don't Make a (Remedial) Right) .
All the
best,
Lucas
Lucas Clover Alcolea
Lecturer
E: lucas.cloveralcolea@monash.edu
W: https://research.monash.edu/en/persons/lucas-clover-alcolea
https://www.linkedin.com/in/lcloveralcolea/