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Personality rights in Australia – An IntroductionAustralia, as a common law jurisdiction, stands in the tradition of English law. The protection of personality rights focuses on the actions of passing off and breach of confidence. As a general rule, Australian law has been more open to the adaptation of these causes of action to the modern needs of personality law protection than has been the case hitherto in the UK. As with England (and the UK), the question is pending as to whether a free-standing tort of privacy will evolve. From the decision in the most recent case, Grosse v Purvis, it appears that this may indeed be the case. I. Passing offIt was in Australia that the action of passing off was first applied to cases of false endorsement. In Henderson the Courts granted two professional dancers protection against the producer of a record who used their picture on the cover of the album. In so doing the Australian courts abandoned the McCulloch / May doctrine which saw a “common field of activity” as an essential element of passing off. The Australian courts have gone further: In Hogan / Koala and Hogan / Pacific Dunlop, they granted the protection of passing off to the “look and feel” of a successful film. In the first case, a shop used a Koala equipped with insignia of Crocodile Dundee as a logo and sold items associated with the film. In the second case, an advertisement was developed in which an actor, who did not resemble Crocodile Dundee but used similar elements such as the hat and the jacket, endorsed a particular variety of shoes. Neither copyright nor trade mark law protected such claims. The court held that a passing off action included such character appropriation by association. II. Breach of ConfidenceThe breach of confidence action in Australia has been not developed to the same extent as the action of passing off. However, some passages in Lenah Meat Game suggest that Australian courts will not restrict themselves in matters of the protection of privacy in the way that the English courts did in Kaye / Robertson (see also the discussion below on Grosse v Purvis). On the other hand, in the UK the Human Rights Act 1998 has had an impact in this area. It will be of interest to see how Australian courts deal with new British case law that incorporates Human rights considerations into the traditional actions such as that of breach of confidence. The judges’ speeches in Lenah seemed not to address this point when they cited authorities such as the Douglas v Hello! (injunction) case. III. Free standing privacy tort?It would appear that a free-standing privacy tort may now be accepted in Australia. In Lenah Meat Game such a cause of action was not accepted, but the minority opinion appeared to argue in favour of such a tort. The most recent case of Grosse v Purvis suggests that time has now arrived. However, as this case was decided by the District Court in Queensland, it has limited interstate applicability. If appealed (which appears likely) it will have greater authority. Australia Case categories:* Passing off extension: no common field of activity: Henderson v Radio Corp. Pty, 1960 * Passing off extension: mere association: Hogan v Koala Dundee Pty, 1988 Pacific Dunlop Ltd v Hogan, 1989 * A new independent right to privacy? Grosse v Purvis, 2003 * Specific issues about fictitious characters: Hogan v Koala Dundee Pty, 1988 * Would such right exist for legal persons?
Australian Broadcasting Corp. v Lenah Game
Meats Pty, 2001 Literature List:Books
Articles, documents and working papers
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