Over the decades, journalists and activist groups have revealed horrendous animal cruelty using covert recordings. A 2011 Four Corners investigation of abuse of Australian cattle in Indonesia is among the most well-known examples.

Many attempts to record agricultural operations have involved activists breaking the law to do it. Court cases are not uncommon.

But the most recent case, being heard by the High Court of Australia this week, is different. In this instance, an abattoir has been awarded copyright ownership of footage shot by animal welfare activists. As a result, the footage, which the activists say depicts animal cruelty, can’t be made public.

In the case, Farm Transparency International v The Game Meats Company of Australia, the court will consider whether the activists’ illegal conduct disqualifies the future use and release of the footage.

The proceedings could be highly significant for both humans and animals, with potential implications for press freedom and the public’s right to know.

Trespassing for transparency

Founded in 2014, the Australian animal advocacy organisation, Farm Transparency Project, seeks to “force industry transparency and educate consumers” about routine operations in the animal agriculture industry.

Controversially, this has involved members of the organisation trespassing on commercial properties.

In 2024, several Farm Transparency employees gained access to a Victorian slaughterhouse operated by the Game Meats Company on seven occasions. These trespasses involved the installation of cameras in the ceilings of Game Meats Company’s goat slaughter sites.

The footage of slaughtering processes at the abattoir was then used to produce a short film. Farm Transparency alleges the vision depicts breaches of animal welfare laws.

As the Federal Court judge observed in the initial case ruling, some of the goats “are shown being manhandled after escaping from a restraint apparatus” while others “appear not to be unconscious (or, perhaps, wholly unconscious) at the point that they are [killed]”.

Game Meats has denied any wrongdoing.

The case before the High Court

Copyright is a type of intellectual property right founded on a person’s skill and labour. Under the Copyright Act, the general position is that copyright vests with the footage-maker. In this case, that’s Farm Transparency.

But in a novel legal argument, Game Meats has argued copyright should be assigned to them.

This was first considered by a single Federal Court judge. The judge concluded “the court should proceed with caution”, suggesting that assigning copyright to Game Meats was better left to a higher court.

That’s what happened when the ruling was appealed. Three Federal Court judges found copyright of the footage and film should be assigned to Game Meats via a trust because of the circumstances in which the footage was obtained.

In reaching its decision, the appeal court drew analogies between the response to Farm Transparency’s “surreptitious intrusion” on Game Meats’ property, and the need to return property obtained by a “fraudster or thief”.

Farm Transparency appealed against that decision. The case will now be heard by the High Court, which will determine who should hold the copyright.

Private dispute, profound implications

This is not the first time a case involving Farm Transparency has been brought before the High Court.

In 2021, the organisation challenged New South Wales’ Surveillance Devices Act, arguing that it impermissibly infringed on the freedom of political communication recognised in the Australian Constitution. It was unsuccessful.

The current High Court appeal has potentially far-reaching implications. In its written submissions to the High Court, Farm Transparency argues the Federal Court’s evaluation of the “moral calibre” of the group’s conduct is “transformative of legal relations not just between the parties but the world”.

The Human Rights Law Centre and the Alliance for Journalists’ Freedom are making advisory submissions as “friends of the court”.

Both groups are concerned about how the High Court decision may impact the legitimate work of journalists and whistleblowers.

The case is also an example of “ag-gag” (agricultural gag) laws. Ag-gag refers to laws whose common feature is to “keep evidence of the unflattering, and sometimes criminal, practices of farms and slaughterhouses from public view”.

Such laws are increasingly being used in Australia to curtail the speech of animal advocates who seek to expose conditions in animal production industries.

The Game Meats Company’s case is the first time copyright law is serving as a form of ag-gag. Using copyright law in this way prevents footage of alleged harm to farmed animals being shared with the public.

Ends justifying the means?

The activities of Farm Transparency’s predecessor, “Aussie Farms”, were a key driver for a Victorian parliamentary inquiry into the potential impacts of animal activism on the state’s agriculture industries.

At the inquiry, farmers and industry groups expressed concern about being targeted, and at times intimidated, by activists.

At the same time, Farm Transparency has done much to share the realities of animal agriculture with the Australian public. The organisation produced the 2018 award-winning documentary, Dominion. It featured covert footage primarily from Australian animal agriculture operations, shot by members of Farm Transparency.

In 2023, Farm Transparency’s covert filming of pigs being suffocated to death with carbon dioxide gas formed the basis of a high-profile media report, and sparked another parliamentary inquiry into pig welfare in Victoria.

If the High Court accepts Game Meats’ argument, similar releases in the future could be prevented by law.

Uncertainty abounds

Animal welfare is an issue Australians care about. The way to ensure strong animal welfare in the animal agriculture industry is certainly not to encourage trespass or covert filming on private property.

However, the reality is that farmed animal welfare is woefully under-regulated. Scandals surrounding the mistreatment of animals are regularly uncovered by activists, journalists and whistleblowers, rather than in the course of standard compliance processes.

So the High Court must now decide whether the law should allow for such vision to be made public, potentially uncovering grave suffering, or keep it safely out of sight.

Lev Bromberg previously received a Commonwealth Government Research Training Program Scholarship. He is affiliated with the Australasian Animal Law Teachers and Researchers Association.

Serrin Rutledge-Prior received a Commonwealth Government Research Training Program Scholarship during her doctoral studies, and previously volunteered for the Animal Defenders Office, a non-profit legal service.