Today Tonight v Chaser – Copyright in video taken in trespass?

Daily Telegraph photo

(Photo from Daily Telegraph, extracted from Seven's own broadcast.)

Channel 7 obtained a preliminary injunction to prevent the Chaser from broadcasting video it recorded whilst allegedly trespassing on Channel 7's premises.

Paragraph 14 of the judgment notes that Channel 7 had planned to show its own version of events on Today Tonight, which concerned Barnett J. Channel 7 agreed to give an undertaking that it would not broadcast that story until after the determination of the substantive proceedings.

It appears that Channel 7 did, in fact, broadcast its version of events. Video is available from idents.tv.

It seems unreasonable to grant an injunction based upon publication of confidential information, when the plaintiff itself plans to publish that same information shortly afterwards. Obviously in this case it is not the confidential information itself which Seven sought to protect, but the right to be first to show the story, and the right to depict events in the best light possible.

Indeed, the injunction appears to have been granted at least in part on the basis that Channel 7 would not itself broadcast the footage. Dale Clapperton wonders whether the broadcast would place Channel 7 in contempt of court?

To make matters worse, the segments that Seven broadcast did in fact contain personal information, including telephone numbers, of Today Tonight staff members.

The obiter in ABC v Lenah that Seven relies on in its claim for ownership of copyright in the tapes requires either a degree of confidentiality or of loss to goodwill. It would be unfortunate if a general principle were to emerge that all video content which is taken on private property without permission is to be owned beneficially by the owner of the property. If a case cannot be made out for an action in breach of confidence, it would not seem desirable to provide a remedy in the tort of trespass. One of these actions is inherently suited and balanced to protect confidential or secret information, and one of these is not.

Stay tuned for the judgment in the substantive proceedings.