Furnari v Ziegert [2016] FCA 1080 (2 September 2016): Telecommunications (Interception and Access) Act 1979, private communications, injunctive relief, defamation

September 18, 2016 |

The Federal Court per Murphy J in Furnari v Ziegert [2016] FCA 1080 considered the unusual application for injunctive relief arising out of a defamation action.  The decision is notable for its consideration of section 7 of the Telecommunications (Interception and Access) Act 1979 (“TIA Act”).

FACTS

The applicant purchased a pedigree bobtail Doberman pup from the respondents for $3,500 in December 2015. He said that Ms Ziegert represented that the pup could breed, was a natural bobtail, had been checked by a veterinarian, didn’t have Von Willebrand disease and weighed between 9 and 10 kg.  Upon taking delivery of the pub he said it had been sterilised, was diseased, weighed only 4.5 kg, was unhealthy and, as if that wasn’t enough, was not a natural bobtail.  Not surprisingly the applicant alleged misrepresentations by the respondents [7] which is the subject of a proceeding in the Victorian Civil and Administrative Tribunal  [8].

The dispute escalated into a defamation proceeding. His Honour summarised the circumstances  as:

“..what started as a minor and straightforward commercial dispute over alleged misrepresentations in the sale of a dog has descended into a slanging match by telephone, text message, email and on social media. It does not appear the parties have behaved in a level-headed fashion and their conduct has inflamed rather than assisted to resolve the dispute between them.” [10].

Consistent with that toxic environment on Sunday, 31 January 2016 Funari says he spoke by phone to the second respondent who, he said, screamed a profanity at him and to which in response he screamed back, telling the second respondent that he would sue and expose their “scam”. The conversation was recorded.  The applicant did not know that he was being recorded in that conversation [19].

The applicant made an application alleging that the sound recording in the YouTube Clip constitutes a breach of s 7(1) of the TIA Act because the respondents intercepted or authorised, suffered or permitted others to intercept the telephone conversation as it passed over the telecommunications system [12] and sought the following orders [13]:

That pursuant to section 107A of the Telecommunications (Interception and Access) Act 1979 (Cth):
(a) the defendants are ordered to immediately remove the Youtube Clip from the world wide web; and
(b) the defendants are ordered to immediately deliver up to Furnari all copies of any record of the Information in their possession, custody or control.

The Court summarised the evidence in support of his application included, at [9]:

  • a YouTube Clip of the telephone conversation on 31 January 2016 records the applicant as saying to one or other of the respondents:

(indecipherable) you are such a fucking thief and a liar and I knew that you were a liar from (indecipherable) and I’m gonna sue you and I’m gonna make the biggest issue of this.

  • Ms Ziegert and/or Mr Summerauer  made defamatory statements about him in five posts to Ms Ziegert’s Facebook page (under the name and Facebook page of Jenny Haysim), and in four emails to Mr Furnari’s veterinarian, his solicitor and others and to a puppy advocacy group ;
  • Facebook posts by Ms Ziegert put on by the applicant, includes excerpts from internet posts alleged to have been made by the applicant directed at Ms Ziegert and text messages from the applicant to Ms Ziegert

DECISION

At [14] the court set out the relevant principles relating to injunctive relief from United Dairy Power Pty Ltd v Murray Goulburn Co-Operative Ltd [2011] FCA 762 (Dodds-Streeton J) being:

(a) Whether the applicant has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief.
(b) A prima facie case means that the applicant must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial. It does not mean that the applicant must show that it is more probable than not, or in excess of 50% chance, that the applicant will succeed at trial.
(c) How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order it seeks.
(d) The second inquiry is whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.

The relevant provisions are sections 7(1) and 5F of the TIA Act, with section 7(1) providing, at [16]:

A person shall not:
(a) intercept;
(b) authorise, suffer or permit another person to intercept; or
(c) do any act or thing that will enable him or her or another person to intercept:
a communication passing over a telecommunication system.
(Emphasis added.)

and section 5F:

When a communication is passing over a telecommunication system
For the purposes of this Act, a communication:
(a) is taken to start passing over a telecommunication system when it is sent or transmitted by the person sending the communication; and
(b) is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.
(Emphasis added.)

The court stated that “..once the communication becomes accessible to the intended recipient, it is no longer “passing over” the telecommunication system” [17]. His Honour found that this position is confirmed by s 5H which refers to the communication being accessible when, at [18], it:

(a) has been received by the telecommunications service provided to the intended recipient; or
(b) is under the control of the intended recipient; or
(c) has been delivered to the telecommunications service provided to the intended recipient.

As a consequence while the applicant made out a prima facie case that:

(a) one or other of the respondents recorded the telephone conversation they had with him on 31 January 2016;
(b) they did so without the applicant’s knowledge or consent; and
(c) they uploaded the recording to YouTube.

he did not find that there has been a prima facie case made out that the respondents “intercepted” a communication passing over the telecommunication system as required for a breach of s 7(1) of the TIA Act [20] on the following grounds:

  • there was no evidence at all as to how the respondents made the recording, [21] ,and how the recording was made is critical to establishing a prima facie case of “interception” of a telecommunication under the TIA Act [22]
  •  the evidence strongly pointed to an inference that one or other of the respondents recorded the telephone conversation at the point that it became accessible to them [23] and while  section 6 states that an interception of a telecommunication can occur “by any means”  it is the passage over the telecommunications system in which falls within section 7(1).
  • the effect of s 5H(1) is that a telephone call that has reached its intended recipient is “accessible” to that person.
  •  it was difficult to see how a telephone call which is received by an intended recipient is not accessible to that person [25].
  • he cited  Violi v Berrivale Orchards Ltd [2000] FCA 797,at [8], where  Branson J stated:

As the recording made by Mr Violi of the telephone conversations between him and Mr Pumpa was apparently made by recording sound emitted from the telephone handpiece, it would appear that he did not record “a communication in its passage over [a] telecommunications system” within the meaning of the Interception Act. Rather he recorded a conversation after its passage over a telecommunication system. Nothing in the Interception Act discloses an intention to “cover the field” in the Constitutional sense so far as the recording of telephone conversations is concerned, as opposed to an intention to cover the field so far as telecommunication interception is concerned (cf Miller v Miller [1978] HCA 44; (1978) 141 CLR 269).
(Emphasis in original.)

  • the TIA Act relates to the interception of communications “passing over” a telecommunication system and, as is not intended to cover the field in relation to the recording of telephone conversations by a party to that conversation. It is concerned with protecting privacy of communications passing between users of the system and that there is no privacy of communication to be protected as between the caller and the intended recipient who receives the call [28].

His Honour noted that  the respondents live and work in Queensland and as such given they were likely to be in Queensland when the applicant telephoned them on 31 January 2016  section 43 of the Invasion of Privacy Act 1971 (Qld) may be applicable, [30].  It provides:

Prohibition on use of listening devices
(1) A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.
(2) Subsection (1) does not apply-
(i) where the person using the listening device is a party to the private conversation…

The court noted that while the applicant did not allege a breach of this provision he noted that it is not an offence for a person to record a private telephone conversation to which the person is a party [32].

ISSUE

The decision highlights the narrow protections under the TIA Act to recorded communications. Section 7(1) provides no assistance to a complaint about the recording of a telephone conversation unless it can be clearly established that the recording is conducted while the communication is passing through a telephone and not recorded by the recipient.  It is difficult to apply to anyone but a third party, being not a participant, recording the conversation.  As the court also noted in obiter comments State legislation does not fill the gap to protecting private conversations, in Queensland at least.

It is also clear from the judgment that in defamation proceedings there is a significant reluctance for the court to grant injunctive relief.  There are longstanding good public policy reasons for this though given the impact of postings on social media where other means are not possible to have offending publications removed this may be the only option where the impact of the damage is ongoing and damages are not an adequate remedy.

One Response to “Furnari v Ziegert [2016] FCA 1080 (2 September 2016): Telecommunications (Interception and Access) Act 1979, private communications, injunctive relief, defamation”

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