At first glance, it appears perverse… an animal rights group secretly films scenes of it alleges are examples of animal cruelty at an abattoir, and a court grants copyright over the video to the subject of the film, the owners of the abattoir.
On a summer's night early in 2024, a group of activists from Farm Transparency International (FTI) scaled fences with signs marked "Private Property" and snuck past security cameras onto the grounds of the abattoir in rural Victoria. Once inside, they drilled holes in the ceiling of the slaughterhouse and placed tiny hidden cameras to film the slaughter of goats for export. Seven times they made it onto the site, to collect footage and refresh batteries.
The activists claimed the video showed evidence of what they alleged was animal cruelty. They edited the hours of footage down to a 14-minute compilation and sent it to the Department of Agriculture. When the department didn't respond, the team sent the video to Channel 7 and uploaded it to their own website.
That's when the abattoir owners – the Game Meats Company – went to court to try and stop the video from going public.
Last Tuesday, the High Court heard a dispute about who holds copyright over the video: is it the activists who produced it, or the abattoir that was the subject of it? The question is novel – it is the first time the subject of a video has ever claimed ownership of it – but whatever the court decides, it will have a significant impact on investigative journalism and whistleblowers who rely on covertly filmed images to expose wrongdoing.
If a company feels it has been wrongfully exposed, one avenue is to seek an injunction to block the material from being published, and demand compensation. That is what Game Meats did in this case. But they also went a step further, arguing that because the video was created as a result of trespassing, the court should grant them copyright over the video through what is known as a 'constructive trust'.
Constructive trusts are an obscure and complicated legal mechanism usually used to resolve disputes over physical property. Never before has the law been used in this way to decide who should own copyright.
The court initially rejected the argument, but Game Meats appealed to the Full Bench of the Federal Court which overturned the ruling. The Federal Court ordered FTI to give up any claim over the video, and hand it over.
Professor Peter Greste outside the High Court. Picture: Hilary Wardhaugh
Now, the activists – Farm Transparency International – have appealed to the High Court to have copyright restored. My organisation – the Alliance for Journalists' Freedom – joined the Human Rights Law Centre to act as friends of the court, to argue that the Full Bench's decision would have grave consequences for investigative journalism and the whistleblowers who rely on covertly obtained images to expose wrongdoing.
Copyright law was designed to protect the creators of a work of art, and help them profit from it. Until now, it has never been leveraged to stop potentially embarrassing or commercially sensitive material from being released. But Game Meats' lawyers have resorted to copyright to keep uncomfortable footage of the messy business of animal slaughter away from the public. That is a dangerous step.
To be clear, we make no judgement about the behaviour of either party to this case. The Department of Agriculture saw nothing that justified their own investigation or prosecution, and we did not weigh into the debate about whether FTI was right to trespass, or about what the video shows.
Our concern was over two potential consequences that flow from the Federal Court's decision.
First, there is the chilling effect. Journalists and whistleblowers are already under extreme pressure from a host of overbearing national security, privacy, and defamation laws that make investigative journalism not just difficult but incredibly risky. If the High Court rejects the appeal, would add an extra level of uncertainty and risk to anything involving covertly obtained images, and that is likely disrupt otherwise important public interest reporting.
Second, it introduces a potential route for the subjects of those reports to bypass a crucial public interest test. Both parliament and the courts have recognised the vital role that good journalism plays in our democracy and introduced a public interest defence in several statutes. Most recently, in 2024, parliament passed a privacy tort that gave journalists the right to argue that a violation of privacy was necessary to expose serious wrongdoing, in the public interest.
Assigning copyright to the subject of a film, even if it was made while violating their civil rights, means that journalists might not be able to argue the public interest, even if the film includes evidence of, say, corruption, pollution, or modern slavery. The risk also applies to whistleblowers who might resort to covert filming to gather evidence of wrongdoing in their own company.
There are already far too many obstacles in the way of good public interest journalism, and plenty of tools for those who feel their rights have been violated. If the High Court rejects this appeal, we fear it will unnecessarily undermine transparency in a country that already privileges secrecy.
Peter Greste is a professor of journalism with the School of Communication, Society and Culture and the Executive Director for the Alliance for Journalists' Freedom.
