Game Meats Vol 2: Illegal footage to no longer make a killing in Australia

The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104

What you need to know

• If you have filmed a person or business without their permission, the court may find that you hold the copyright to that work under constructive trust for that person or business.
• You may be required to assign the copyright in that work to them and be precluded from publishing that material.
• You may also be liable for damages associated with the use of that work.

What you need to do

• Media and content creators should carefully consider whether to film if they have not first obtained permission to do so.
• If you have obtained footage filmed without permission, be aware that there could be severe financial repercussions to publishing that content.

Background

The appellant, GMC, slaughters and processes goats for export at a halal abattoir in Eurobin, Victoria. The abattoir is located on private premises and was at all times surrounded by a six-foot metal chain and barbed wire fence. Access to the abattoir was strictly controlled, with clear signs indicating access was restricted placed at the gate.

The respondent, FTI, is an animal protection advocacy operation, which aims to educate members of the public about matters concerning animal exploitation and suffering at farms, slaughterhouses and other commercial businesses.

On several occasions between 9 January and 13 April 2024, FTI employees or agents crawled under the GMC abattoir's perimeter fence at night to plant and subsequently recover cover video recording equipment. FTI used the footage obtained from this surveillance equipment to create a roughly 14 minute long video (the Footage).

On 3 May 2024, an employee of FTI made a complaint about the GMC abattoir, which included a copy of the Footage, to the Department of Agriculture, Fisheries and Forestry. GMC was sent a copy of this complaint by the Department on 5 May 2024. On 13 or 14 May 2024, frustrated by the perceived lack of response, FTI sent the Footage to the local Channel 7 news network. On 17 May 2024, Channel 7 ran a story about the matters shown in the footage but did not show any of the Footage in the story. On that same day, FTI published the Footage on its website with a media release and a number of still images obtained from the video. Also on that same day, GMC commenced legal proceedings alleging that FTI had obtained the Footage through unlawful trespass on GMC's property and, amongst other things, that copyright in the Footage was held by FTI in a constructive trust for GMC's benefit and seeking GMC be required to assign that copyright to CMG and thereafter delete any copies of the footage in FTI's possession.

First instance decision

In December 2024, the primary judge awarded GMC $130,000 in damages ($100,000 of which were exemplary damages) for FTI's trespass on its property, as this was one in a series of tortious acts at several different premises that FTI intended to continue. However, the primary judge found that GMC was not entitled to an injunction restraining FTI from publishing any video material obtained from the video equipment placed at the abattoir, nor were they entitled to a constructive trust over the copyright in that material.

GMC appealed this decision to the full Federal Court and FTI cross-appealed in respect of the quantum of damages.

Copyright ownership

Under normal circumstances, section 98 of the Copyright Act 1968 (Cth) provides that the maker of a cinematograph film, in this instance FTI, is the owner of any copyright subsisting in the film. GMC argued that, as the film was made in circumstances involving the invasion of legal or equitable rights, it would be iniquitous for FTI to retain the copyright in the film.

Justice Jackman (Justices Horan and Burley agreeing) noted that in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (Lenah Game Meats), three justices of the High Court had indicated that it may be possible for the maker of a broadcast film to be regarded as the constructive trustee of an item of personal property, such as copyright, in circumstances where "it may be inequitable and against good conscience for the maker to assert ownership of the copyright against the plaintiff and to broadcast the film". This may be the case, for example, where "a cinematograph film may have been made in circumstances involving the invasion of the legal or equitable rights of the plaintiff". This may be so even where there is no existing relationship between the parties. This passage was more recently cited with approval by Kiefel CJ, Bell and Keane JJ in Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14, (2020) 272 CLR 177.

The Court in this case found that, while the High Court justices had phrased the existence of a constructive trust as a possibility, they did so "as the ultimate decision would depend upon the particular facts of the case" and not because of a lack of legal support for the imposition of such a trust.

FTI did not contest that the individuals were trespassing as agents of FTI.

The Court found that "the moral calibre of the wrongdoing in this 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". As such, the Court determined that FTI held the copyright in the Footage on a constructive trust for GMC, despite the lack of pre-existing relationship between the parties, and the fact GMC had no role in the creation of the Footage.

It followed that the Court ordered:

• an injunction preventing FTI from publishing any of the images in question (except to the Department) (including the Footage);
• FTI assign the copyright in the images in question (including the Footage) to GMC within 7 days of the judgment;
• FTI delete all copies of the images (including the Footage) within 7 days of the judgment; and
• FTI file an affidavit attesting to its compliance with these orders with 14 days of the judgment.

Damages

The primary judge had ordered FTI pay $100,000 in exemplary damages as FTI accepted its trespassing was "relevantly contumelious" and his Honour "accepted that FTI intends to effect similar trespasses upon other premises in the future". His Honour also referred to FTI's previous successful fund raising endeavours, their "unrepentant nature" and "the lack of any expression of remorse". The appeal Court agreed that exemplary damages should "serve as the court's attempt to persuade FTI and others like it to abandon their preference for illegality and yield, like responsible citizens, to the requirements of the law". As such, the Full Federal Court did not find any error in the primary judge's reasoning in regards to the amount of the exemplary damages.

Implications

This case is the first to explicitly and unambiguously apply the principle raised in Lenah Game Meats that the maker of a work may hold the copyright in that work on a constructive trust for the subject where the making of that work involved the breach of the subject's legal or equitable rights. As this case illustrates, this can be the case where individuals trespass on a company's private property in order to film the business.

This latest development in copyright law and the associated exemplary damages increases the risk to media outlets and content creators creating and publishing stories without the consent of the subject of those stories. Journalists, content creators and publishers should be aware that the creation of content without the necessary consents can result in them losing the rights to that content, as well as potentially being liable for hefty financial penalties. Where possible, signed consents and releases should always be obtained.

To further add to the potential risks faced by content creators, the new tort of privacy, which came into effect earlier this year, protects individuals from "serious invasions of privacy". While we are still waiting for the first examples of the tort to be used in Australia, it is clear the legal risks associated with covert filming are increasing.

Want to know more?

• A new privacy right of action – how to avoid unexpected consequences, (13 June 2025)
  This article provides a useful overview of the new tort of privacy.

Other Author: Rebel O'Connor, Associate.