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Could copyright now be used to gag advocacy groups and media reporting?
The Australian Federal Court’s recent copyright judgment on footage filmed covertly could deter rights advocacy groups and undermine media freedom and public debate
Published 20 August 2025
Any crime committed behind closed doors cannot be investigated unless it is observed and reported.
Some of the most prominent legal cases and Royal Commission investigations have stemmed from covert filming, including aged care abuses.
In 2024, an animal advocacy group covertly filmed in an abattoir.
Now, the Federal Court has handed down an appeal judgment over who owns the copyright when footage is obtained covertly through trespass.
Currently, the media can cover stories of public interest using this type of footage through a Fair Dealing Exemption. But they need to obtain the footage first.
So this court decision is groundbreaking. It adds to an existing body of law that’s having a chilling effect on media freedom.
For example, even if a journalist now filmed this footage, there is a question about whether the copyright might belong to the abattoir.
The ruling also sets a troubling precedent for a growing practice of ‘strategic litigation against public participation’ (called ‘SLAPP suits’) in Australia.
This type of legal action targets organisations or individuals for their advocacy on matters of public interest, including environmental, human and animal rights.
Here’s why we should all be concerned.
A messy set of facts and technical legal reasons
The recent Court decision came after an abattoir in Eurobin, in regional Victoria, brought proceedings against an animal protection advocacy group, Farm Transparency International.
The Court heard that Farm Transparency International employees trespassed several times on the abattoir in early 2024 to covertly film The Game Meat Company’s slaughter operations.
The advocacy group formed the view that the abattoir had breached relevant animal welfare codes of conduct, after filming footage that included “goats having their throats cut while they appear to be still alive”.
The group then sent the footage with a formal legal complaint to the Federal Department of Agriculture, Fisheries and Forestry, which is responsible for enforcing those codes.
When the Department did not respond, Farm Transparency sent the footage to 7NewsBorder.
An affidavit submitted to the Court shows that Game Meats’ lawyer threatened to bring proceedings against Channel 7 if it didn’t provide an “undertaking … that no publication of any story arising from this matter will be aired ...” without providing it with 24 hours’ notice.
It raised the threat of legal costs if an undertaking was not provided.
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Channel 7 responded that it had no intention of publishing the footage, but it reported on its contents.
The Game Meats Company then sued Farm Transparency International for trespass, misleading and deceptive conduct, and ‘injurious falsehood’ – the latter two of these are causes of action connected with damaging businesses – and breach of copyright.
It then sought damages and an injunction.
Why this decision breaks legal ground
Last December, the Federal Court found that Farm Transparency International had trespassed but rejected the other arguments.
It awarded ‘exemplary damages’ of $AU100,000 against Farm Transparency for wrongful conduct – but not an injunction. But the abattoir appealed the Court’s finding.
To stop Farm Transparency from publishing, the abattoir needed to convince the Court that the copyright really belonged to it because it was obtained through trespass on its property.
The Catch 22 is that media can’t trespass to film, but has a fair dealing exemption to publish it.
If advocacy organisations can’t own the copyright of what they film, then issues of public interest like abuse won’t be seen widely or face any consequences.
No Australian court has previously ruled that copyright could be acquired by victims of trespass.
Back in 2001, another abattoir attempted to sue the ABC to stop it publishing footage, but the High Court rejected its arguments.
But in 2025, the Federal Court of Appeal found that the facts were different from earlier cases, because Farm Transparency intended to publish the footage.
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The Court found that Farm Transparency meant to harm Game Meats’ business. The “moral calibre of the wrongdoing” meant the copyright should belong to the abattoir.
Law is complex and threats are vague
Media can publish copyrighted material as part of reporting news. In many states they can also publish material obtained through covert surveillance if it is in the public interest.
New South Wales is currently the only state without a public interest exception – something that’s now being challenged for breaching the constitutional freedom of political communication.
But these media protections have loopholes, through which well-resourced litigants can make inroads.
Legal exemptions for reporting don’t protect media from the threat of messy and expensive legal proceedings, including defamation or injurious falsehood.
The recent Court ruling could deter media from relying on these protections, especially when the law is complex or threats are vague.
The facts at the heart of last week’s Federal Court of Appeal decision are instructive.
The abattoir’s threat of legal proceedings against Channel 7 did not identify any clear legal cause of action, so the basis for the claim remained unclear for Channel 7. The threat of legal proceedings is expensive and this can be enough to deter reporting.
It also adds yet another layer of legal risk and compliance checks for newsrooms operating in increasingly hostile legal environments.
The media must get the footage to publish it under the ‘fair dealing exemption’, and approach all parties for comment.
This Federal Court decision works to ‘attack the source’ and damage the information ‘ecosystem’ in which media freedom operates.
‘SLAPP suits’ and animal welfare scandals
Journalists, human rights defenders, whistleblowers, activists and civil society groups are increasingly facing legal action in ‘SLAPP suits’.
It’s hard for most people to come by information about the conditions of farmed animals. CCTV footage, if it is installed and monitored, is not public.
Government agricultural departments, rather than independent welfare bodies, are responsible for developing and enforcing compliance with animal welfare codes.
This creates incentives to “prioritise industry productivity goals over those of animal welfare”.
Organisations like the RSPCA must respond to complaints but lack jurisdiction to do this in some states. Employees and whistleblowers have sometimes ‘tipped off’ activists to trigger departmental investigations.
Many animal welfare scandals in Australia have only been exposed through illegal trespass and surveillance that falls outside of whistleblower protections.
Farm Transparency International’s previous footage showed animals being beaten and slaughtered without stunning in Tasmania, the beheading of a fully conscious sheep in a taxpayer-funded slaughterhouse in Queensland, and pigs living alongside dead and decomposing animals in South Australia.
Its footage of the controversial use of gas to stun pigs before slaughter made headlines after it aired on 7.30 in 2023. It also triggered a Parliamentary inquiry and Supreme Court proceedings regarding its legality.
Covert footage has directly fed the political and democratic processes that have driven legal change.
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Australia’s constitution protects freedom of political communication because of how our system of government works. Legislation, but also bodies of law like defamation, must conform to those constitutional requirements.
But cases like this are rarely argued on those terms, and instead focus on commercial imperatives like protecting property.
The case also shows us that well-resourced litigants are pushing courts to protect commercial interests in new ways, without those courts necessarily considering how expanding those protections can impact democratic processes.
Farm Transparency has stated that they may seek special leave to the High Court to appeal.
But regardless of the outcome, this case provides an insight into just how exposed Australia’s media freedom is when it comes to the law.