Page 91 - Courting the Media Contemporary Perspectives on Media and Law

82 David Rolph

was even entitled to erect artificial structures in order to gain a vantage point
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over a plaintiff‘s property. As Latham CJ evocatively stated:

‗Any person is entitled to look over the plaintiff‘s fences and to see
what goes on in the plaintiff‘s land. If the plaintiff desires to prevent this,
the plaintiff can erect a higher fence… In my opinion, the law cannot by
an injunction in effect erect fences which the plaintiff is not prepared to
provide. The defendant does no wrong to the plaintiff by looking at what
takes place on the plaintiff‘s land. Further, he does no wrong to the
plaintiff by describing to other persons, to as wide an audience as he can
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obtain, what takes place on the plaintiff‘s ground.‘

In Latham CJ‘s view, then, the logical extension of the inability of ‗the
eye‘ to trespass is that a defendant is at liberty not only to look but also to
describe what he or she sees. To similar effect in the same case, Dixon J
claimed that ‗the right to exclude the defendants from broadcasting a
description of occurrences they can see upon the plaintiff‘s land is not given
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by law‘.
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In Bernstein v Skyviews & General Ltd, Baron Bernstein of Leigh
brought proceedings for aerial trespass and ‗invasion of privacy‘ against a firm
of aerial photographers. In the late 1960s, Skyviews & General had taken an
aerial photograph of Lord Bernstein‘s country estate and had attempted to sell
it to him. Lord Bernstein responded by threatening legal proceedings. In the
mid-1970s, another photograph was mistakenly taken of Lord Bernstein‘s
country estate and was offered for sale to him. On this occasion, Lord
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Bernstein acted upon his legal threats. Dismissing the action, Griffiths J (as
his Lordship then was) characterised Lord Bernstein‘s claim thus:

‗The plaintiff‘s complaint is not that the aircraft interfered with the
use of his land but that a photograph was taken from it. There is,
however, no law against taking a photograph, and the mere taking of a

16
Victoria Park Racing and Recreation Grounds Pty Ltd v Taylor (1937) 58 CLR 479 at 507.
17
Victoria Park Racing and Recreation Grounds Pty Ltd v Taylor (1937) 58 CLR 479 at 494 per
Latham CJ.
18
Victoria Park Racing and Recreation Grounds Pty Ltd v Taylor (1937) 58 CLR 479 at 510 per
Dixon J.
19
[1978] QB 479.
20
Bernstein v Skyviews & General Ltd [1978] QB 479 at 483-84 per Griffiths J.