In ABC v Lenah Game Meats Pty Ltd, the court accepted the possibility of privacy tort. Gummow and Hayne JJ jointly accepted that the decision in the Victoria Park did not prevent from developing a tort of privacy. In Australia, the development of tort of privacy only applies to natural persons. Although a corporation may also suffer economic loss arising from invasion of its privacy, it does not suffer mental distress as that suffered by natural persons. In other words, a tort of privacy as a cause of action may be not available for a corporation to protect its commercial interests. Callinan J apparently argued that corporations may have privacy interests to be protected under the common law. However, Lenah did not have privacy interests to be protected because it was only concerned with its business goodwill or reputation and there was no invasion of privacy.
In the given scenario, Company X’s privacy is invaded when the reporter climbs over the fence and takes photoes. According to the principle in the Lenah case, the company may bring an action against the Express for tort of privacy. However, this does not indicate that this may succeed. The company’s reputation or business goodwill may hence be injured when the publication states its involvement in the scandal. However, this does not relate to its privacy interests and simply is concerned with its reputation. Hence, just like Lenah, Company X cannot rely on tort of privacy to sue against the Express and the journalist due to lack of invasion of privacy.
Media organisations and journalists may be sued for invasion in privacy in the common law. Trespass is one of kinds of privacy torts. To establish trespass, some elements must be satisfied. The claimant must have exclusive possession of the land to obtain the right to sue. The occupation of a land under contractual or licence does not necessarily produce the right to sue under trepass tort. Then, the defendant has not obtained consent or authorisation to enter a private premises. When fences exist and warns such as ‘trespassers will be prosecuted’ are posted, no permission to enter a property is allowed. Second, the claimant needs not to prove damages suffered. Third, the defendant must be at fault. Namely, the defendant trespasses the property or premises without consent or implied license. Finally, the defendant must intentionally directly inferfere in the property. Indirect interference may constitute nuisance When trespass is proven, courts may award damages to the claimant and grant injunctions to stop media from using or publishing any material taken from trespassing.
In the given scenario, the first legal risk is trespass. Company X owns the factory and has exclusive possession of right to the premises. It has the right to sue any person trespassing the land. Obviously, the reporter does not obtain consent or authorisation while entering the factory. She is refused by the security guard and enters the premises by climing over the fence. The fence indicates that the factory owner regards the premises as a private place and rejects entrance without permission. Furthermore, the reporter enters the premises intentionally and directly. The climbing over the defence and taking photoes are intentional direct interference with the land. The reporter may prove the entrance under the consent or authorisation. However, on facts, this seems difficult. It is likely that the trespass tort may be established.
Briefly concluded, the Express may be subject to such causes of action as tort of privacy, trespass to land, and defamation. However, the media may defend itself in some ways. For tort of privacy, the media may not hold liability for invasion of privacy for Company X’s privacy interests no t being involved. For trespass, public interest can be used to defend the media’s conduct. The reporter’s decision to trespass is to avoid or reduce substantial harm to the community. For defamation, truth, qualified privilege and honest opinions are effective defences for the media.