Page 93 - Courting the Media Contemporary Perspectives on Media and Law

84 David Rolph

‗…it is clear that one does not commit a tort merely by looking…Just
as it is not a trespass just to look, so it is not a trespass to sketch what one
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sees…,or to broadcast what one sees…or to photograph it.‘

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In Raciti v Hughes, dealing with an ex parte application for an
interlocutory injunction to restrain the alleged use of floodlights and video
surveillance cameras by one neighbour against another in a proto-Big Brother
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fashion in West Pennant Hills , Young J asserted that ‗as a general rule what
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one can see one can photograph without it being actionable‘. His Honour
found that there was an exception to the general rule when the conduct of the
defendants amounted to ‗watching and besetting‘ – a common law offence
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akin to ambushing a person.
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Finally, in Donnelly v Amalgamated Television Services Pty Ltd the New
South Wales police force executed a search warrant on Donnelly‘s house,
during the course of which a video recording was made. Donnelly was shown
on the video being arrested in his bedroom, dressed only in his underpants.
The video was not shown in court but was somehow leaked to Channel Seven.
Part of the footage was used to promote an upcoming story on the current
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affairs programme Today Tonight. Donnelly sought an injunction to restrain
the broadcast of the footage. Hodgson J (as his Honour then was) granted an
injunction in limited form, only restraining the broadcast of the footage taken
inside the house. Channel Seven was at liberty to screen the footage not only
taken from the public road but also the footage taken on the property of the
events which could have been observed from the public road – because no
wrong is committed at common law by looking at, photographing or filming
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events occurring on private property which are open to public view.
These cases cumulatively suggest that, up until the late 1990s, the right to
privacy frequently arose in the context of claims for trespass to land or private
nuisance, reinforcing the enduring common law perception of privacy arising

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Lincoln Hunt (Australia) Pty Ltd v Willesee (1986) 4 NSWLR 457 at 461-62 per Young J.
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(1995)7 BPR 14,837.
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Raciti v Hughes (1995) 7 BPR 14,837 at 14,837 per Young J.
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Raciti v Hughes (1995) 7 BPR 14,837 at 14,840 per Young J.
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Raciti v Hughes (1995) 7 BPR 14,837 at 18,840-14,841 per Young J.
36 (1998) 45 NSWLR 570.
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Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 at 571-72 per
Hodgson J.
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Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 at 576 per
Hodgson J.