High Court orders animal rights group to destroy abattoir footage, but rejects constructive trust

Farm Transparency International (FTI) said it was "extremely disappointed" by the outcome, which it said would stifle the public's right to know what happens inside slaughterhouses.

The case involved a director and an employee from FTI who secretly installed cameras at a halal abattoir in Eurobin, in north-east Victoria. They admitted to trespassing onto the property, owned by Game Meats Company of Australia (GMC), seven times between January and April 2024. With the footage, FTI put together a 14-minute video of what they described as "extreme animal cruelty".

When they sent it to the federal regulator, a local television news station, and posted it online, the abattoir headed to the Federal Court. The activists were ordered to pay $130,000 in damages. GMC also won an injunction which ordered the online footage to be taken down.

Questions about who should own the footage were only taken up on appeal, when the court determined that ownership was allocated to the abattoir, not the activists who collected it. The court used a mechanism called a "constructive trust" to assign ownership to GMC. It is a remedy imposed by a court when property arises from wrongdoing, but it has never been applied to such a copyright case before.

The notion of the "constructive trust" was at the heart of the activists' High Court challenge. They argued that the court's reasoning was flawed because it did not identify a principle or properly identify facts that supported the decision. They said that while the trespass was wrong, the act of making the video recordings was separate and was not wrong. The activists also said a lesser remedy would have been enough without requiring the rights of the footage to be allocated to the abattoir.

On the other hand, the abattoir argued the trespasses engaged in by FTI were "among the most obvious examples of intentional wrongdoing that one might imagine." They submitted that even without a trust, the court should have granted an injunction that would have prevented the footage from being published and protected GMC from any ongoing consequences.

The High Court unanimously allowed the appeal by FTI in part, meaning the activists have been successful in their claim that no constructive trust should be declared over its copyright in the images. The court found that the rights conferred to GMC through the constructive trust could be used to prevent the further dissemination of the images by people outside of FTI.

"Exercise of those rights against those persons would involve separate and subsequent proceedings against those persons for breach of copyright," the judgment said. "The potential impact on the common law freedom of communication of those persons, and in turn on political communication and on the public interest in free speech, cannot be ignored and cannot be gainsaid."

However, the High Court ruled FTI must destroy all recordings and copies obtained as a result of its trespasses. "Justice is best served by the more limited remedy of the injunction against Farm Transparency requiring deletion of the images," the court said.

In a statement, FTI executive director Chris Delforce said the organisation was "extremely disappointed" by the judgment. "While we're glad the copyright claim on the footage has been defeated, and that third parties such as media outlets are not restricted from publishing, the order for us to destroy all copies of the footage means that only those third parties that downloaded the footage in the few hours that it was published on 17 May 2024 will have any way of publishing it now," Mr Delforce said.

"This is an enormous blow to the public's right to know what happens in slaughterhouses and factory farms. We will comply with the orders and delete all copies of the footage in our possession, but we will never stop fighting against cruelty and injustice."