Page 92 - Courting the Media Contemporary Perspectives on Media and Law

The Mechanical Eye: Looking, Seeing, Photographing, Publishing 83

photograph cannot turn an act which is not a trespass into the plaintiff‘s
21
air space into one that is a trespass.‘

Not only did Griffiths J confirm that what one can see, one can
photograph, his Lordship also suggested the relative seriousness which the
common law ascribes to each of these types of conduct: an aerial trespass is
sufficiently serious to attract legal liability but the ‗mere‘ taking of a
photograph is too ephemeral for legal concern.
Through a series of cases, Young J in the Supreme Court of New South
Wales has consistently upheld the general right to photograph at common law.
22
In Bathurst City Council v Saban the Sabans sought to restrain the admission
into evidence of photographs of their property in proceedings for public
nuisance brought against them by Bathurst City Council. The photographs of
the Sabans‘ backyard were taken either from a public street or, with the
23
occupier‘s consent, from a neighbouring property. There was no trespass to
24
land committed in the taking of the photographs. The Sabans claimed the
25
photographs were an invasion of privacy. Reviewing the authorities, Young J
concluded that it had been consistently held that ‗there is no tortious conduct
involved in taking a photograph of someone else or someone else‘s property
26
without their consent‘. As such, the Sabans could not object to the tendering
27
of the photographs in evidence.
28
In Lincoln Hunt (Australia) Pty Ltd v Willesee, dealing with an
interlocutory injunction to restrain the broadcast of footage taken in the course
of a trespass on business premises by a television current affairs programme‘s
29
camera crew, Young J had to address a submission that the court lacked the
30
jurisdiction to make such an order. In the course of rejecting that submission,
his Honour stated that:

21
Bernstein v Skyviews & General Ltd [1978] QB 479 at 488.
22
(1985) 2 NSWLR 704.
23
Bathurst City Council v Saban (1985) 2 NSWLR 704 at 705 per Young J.
24
Bathurst City Council v Saban (1985)2 NSWLR 704 at 706 per Young J.
25
Bathurst City Council v Saban (1985) 2 NSWLR 704 at 705 per Young J.
26
Bathurst City Council v Saban (1985) 2 NSWLR 704 at 706 per Young J. See also Bathurst
City Council v Saban (1985) 2 NSWLR 704 at 707-08 per Young J.
27
Bathurst City Council v Saban (1985) 2 NSWLR 704 at 708 per Young J.
28
(1986) 4 NSWLR 457.
29
Lincoln Hunt (Australia) Pty Ltd v Willesee (1986) 4 NSWLR 457 at 458-59 per Young J.
30
Lincoln Hunt (Australia) Pty Ltd v Willesee (1986) 4 NSWLR 457 at 461 per Young J.