High court rules laws criminalising secretly recorded footage and audio do not impose too great a burden on speech
In the months leading up to filing of the high court case, the laws stymied attempts by the Guardian to show secretly recorded footage of ex-racehorses being sent for slaughter at NSW pet food factories, a clear breach of industry rules., prohibit the communication or publication of a “record or report” of activities that were obtained as a “direct or indirect result” of the use of an unlawful optical surveillance device. They also prohibit the possession of records obtained using such devices.
“The high court, by majority, held that [sections 11 and 12 of the Surveillance Devices] Act did not impermissibly burden the implied freedom in their application to, respectively, the communication or publication by a person of a record or report, or the possession by a person of a record, of the carrying on of a lawful activity, at least where the person was complicit in the record or report being obtained exclusively by breach of [section eight of the surveillance devices act],” the courtThe...
He said that the “special case was presented on the basis that the activities, albeit undeniably cruel, were not established to be unlawful”. That meant the court was left to consider whether freedom of political communication could be contravened where someone was committing trespass in order to record and publish something that was not illegal., the activists also pointed to the greyhound live baiting scandal as an example of a public interest served by the publication of such footage.
“Regrettably, the case avoids deciding whether the [secret recording] law itself is invalid, and decides only that a person who has unlawfully trespassed to obtain footage of animal cruelty can be forbidden from publishing that footage,” he said in a statement after the decision. “We were found to have been such persons.
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