The Protection of Corporations from Intrusive Media: A German Perspective

Abstract

When the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 refused to accept a corporation’s privacy claim, it also considered the relevant law in the US and in other common law jurisdictions. Even though the approaches to privacy adopted in these jurisdictions vary, none of them at present endorses a common law right to corporate privacy. This article complements this comparative survey by looking at the protection of corporate secrets in German law and considering what guidance it may offer for the future development of Australian law. German privacy jurisprudence is prepared to extend the constitutional and private law protection of privacy to corporations but generally attributes less weight to corporate privacy claims. It depends on the type of information, the manner in which it has been obtained, as well as the manner and purpose of publication whether a corporate privacy interest will outweigh the public interest in freedom of publication. By describing the framework of privacy protection in German law and analysing the key cases in which corporations have claimed protection of their privacy interests from intrusion by the media, this article intends to demonstrate how the concept of privacy is able to accommodate corporate privacy claims and that this may lead to more coherent outcomes. The article suggests that the future development of this area of law in Australia should take account of the jurisprudence developed in common law as well as civil law jurisdictions.