The submission of the plaintiffs as to the public domain
48 However, the plaintiffs submit that there has been no more than limited speculation in the internet exchanges. In some parts they refer to many different players. Other parts acknowledge expressly the rumour-like nature of the postings. The plaintiffs contend that the internet exchanges do not amount to the information being in the "public domain". They submit further that the information, even if published in some internet postings, is not common knowledge. It is argued that even if the names are known by some persons, there is nevertheless much to protect, as is clear by the desire of the media to publish the information. The plaintiffs submit that even if any of the published speculation has named one or more players who may have tested positive, whether co-incidental or not, such publication has been limited.
49 They contend, first, that the publication of three names as part of the speculation that occurred when the Sydney Morning Herald was distributed electronically to a small number of organisations and then recalled is of no consequence. By itself, I accept that this publication would not be sufficient to say that the confidential information has entered the public domain.
50 The plaintiffs contend further that the mention of a name on Fox Footy by a caller was momentary, speculative and heard by a limited audience only. There is no evidence before me as to the size of the audience but by itself, I accept that this incident would not be of such moment that it could be said that the information came into the public domain by reason thereof.
51 As to the dissemination of any confidential material within the AFL, the evidence before me is of limited oral discussion of one of the purported names by the Chief Executive of the Players' Association with the President of that Association and discussion with the players named and one or more of their parents and/or their managers. There is no evidence before me of the extent of dissemination of gossip, speculation or information amongst the so-called "AFL family". There is evidence that some journalists have stated to Mr Gale and others that they have possession of information as to the names of the players who have twice tested positive. No such journalist gave evidence before me, however. There is no evidence before me that any such information has any documentary basis, and it is extremely difficult to discern whether such beliefs are based upon credible sources, or instead upon general gossip and speculation. I do not consider that the evidence in these regards is such as to say that the confidential information of the identity of any player who has tested positive under the IDP is in the public domain.
Conclusion as to whether or not the confidential information is in the public domain
52 The strongest argument as to the information being in the public domain is not that revealed by the above three possible sources of the release of the confidential information, being the Sydney Morning Herald, Fox Footy and inside the so-called "AFL family". Each of those sources disseminated information to a limited audience. There has been no dissemination to the public at large, being the readers of national newspapers, or the viewers of free to air television or by other mass media outlets. In my view, the strongest argument relates to the information referred to in the various internet postings, or alternatively, that in conjunction with the above three possible sources of release of confidential information.
53 The nature of the information appearing on the various internet sites referred to by Mr Poulton in his affidavit of 15 May 2006 bears some consideration. An analysis of the exhibits produced by Mr Poulton does show that the websites in question over the period of March and April of 2006 contain a large number of references to the issue of drug testing by the AFL. However, much of what is placed upon the websites referred to by Mr Poulton, is speculation. For example, Exhibit AFL1 names three players about whom there is no suggestion before me of any positive test under the IDP. Some of the postings express the fact that they are "surmise". There is surmise as to the club to which players who may have tested positive belong. One posting states, "Only a guess based on which paper the report came from". Exhibit AFL3 contains similar speculation by those posting the entries. Exhibit AFL4 contains a discussion about trading certain players at the end of the year. Some correspondents appear to treat the discussion as a genuine discussion about trading players. Others treat the discussion thread as an opportunity to speculate about who may have tested positive. Assertions are made to the effect that "these are rumoured names". Likewise, Exhibit AFL5, which refers to another website, contains statements from correspondents such as, "I hope like hell it is (player X)" and, "Nothing like a bit of gossip". Exhibit AFL10 contains the comment: "The whole point of being on this site is having the freedom to post whatever nonsense we feel like". Other of the exhibits to which Mr Poulton referred reveal similar sentiments to the effect that the information is gossip and speculation. On the other hand, there are several positive assertions as to the identity of the players who tested positive, but by an unnamed person or persons using a pseudonym. The question is whether such internet postings have put the confidential information into the public domain.
54 As stated above, Barrett J in EPP v Levy,[27] said in the circumstances of the case before him that he regarded "... everything which is accessible through resort to the internet as being in the public domain". However, it should be noted that Barrett J was referring to a web site operated by a commercial entity which permitted members of a buying group to place the particulars of their businesses upon the web site. The viewer of such a web site would be entitled to treat the appearance of such particulars on the web site as being information of at least some veracity and authority. Likewise, the reader of a newspaper, or the viewer of a television station is entitled to treat a news report appearing therein as having at least some veracity and accountability. Whilst it is true that this might vary according to the nature of the news media publishing the report, a reader or viewer knows that some entity, be it the reporter or publisher of a newspaper or in the case of a radio or television station, the speaker, a producer or corporate owner is identifiable and accountable. For instance, the average member of the public is aware of the fact that a newspaper or television or radio station may be subject to the laws of defamation if it published wrongful information without good cause. No doubt the public is aware that other processes such as the control exercised by the Australian Press Council are applicable. The public regards information published by the print, television and radio media as being generally credible.
55 Can it be said, however, that a "discussion forum" which enables opinions, gossip, trivia, rumour and speculation to be published as an assertion of fact by anonymous contributors places the information the subject of such discussion, into the public domain? There can be little doubt that, as the High Court in Dow Jones v Gutnick[28] observed, the internet throws up many challenges for established principles of common law, but that does not mean that it can be a "law free zone". The fact is that anyone, be it a disgruntled employee, a journalist, or anyone else interested in propagating what might otherwise be confidential information can put information upon a discussion forum under an assumed name. Indeed, the lack of accountability is such that one person can place such information upon a discussion forum, or for that matter on numerous discussion fora, in many different names. If speculation, gossip or even assertion from an anonymous source, thus being incapable of being verified or in any way held accountable, is to be regarded as the putting of information in the public domain, then the opportunity for the unethical, and the malicious, to breach confidentiality and then claim that there is no confidentiality is unrestrained. For example, an unethical intending publisher could, without having access to confidential information, speculate by use of an assumed name, as to what might be confidential. This speculation could be placed on a number of discussion fora under a number of pseudonyms and asserted to be fact. Could it then be asserted, as here, that the fact that the material has been the subject of assertion in "chat rooms" means that confidentiality is lost?
56 In my view, the fact that such speculative gossip, innuendo and assertion by unknown persons has been placed on the web sites of various discussion fora does not make confidential material lose its confidential nature. Obviously there are many users of the internet and an unknown, but no doubt significant, number of users of such web sites as those referred to above might well have seen the names to which anonymous persons have referred in their postings. However, it is still in the realm of speculation. That is a vastly different proposition from the circumstances of publication of material by a newspaper, television station or other source of dissemination of news and other material such as radio or authorised web sites conducted by such sources. Those sources are accountable for the information they publish and are, to an extent at least, trusted by the public to report material to that public accurately. On the evidence before me the public, and particularly that part of the public who use internet chat rooms have no such expectation of authenticity, veracity or otherwise of the information posted on such websites.
The Iniquity Rule
The submission of the defendants as to iniquity
57 The defendants contend further that there is no confidence recognised by the law in circumstances of iniquity. Put another way, Mr Marks of Senior Counsel for the defendants, contends that the information the AFL seeks to have remain confidential, is information which reveals that AFL players have committed a criminal offence. He points out that in all States and Territories of Australia it is an offence to use and/or possess "a drug of dependence" or a "prohibited drug". Each of the drugs, the subject of the IDP, would fall into the category of either a "drug of dependence" or a "prohibited drug" in the various Australian States and Territories. By way of example, the Victorian legislation provides under s.73 of the Drugs Poisons and Controlled Substances Act 1981 that a person who has possession of a drug of dependence is guilty of an indictable offence. Where the drug is a small quantity of cannabis the penalty is not more than $500 provided that the offence was not related to trafficking in cannabis. In any other case and provided that the purpose was not related to trafficking, the maximum penalty is $3,000 and/or imprisonment for up to a maximum of one year. Similar provisions pertain in other States and Territories. Mr Marks argues that the law in Australia is that information concerning a crime, wrong or misdeed of public importance will not be recognised by the law as being confidential. He submits that persons privy to such information cannot, by private agreement or otherwise, prevent its disclosure by reverting to the equitable doctrine of breach of confidence. He submits that there is simply no confidence in equity as to the disclosure of an iniquity.
58 Mr Marks relies upon the early case of Gartside v Outram.[29] In that case, in relation to a claim for confidentiality of a trade secret, the Court held that an employee could not be made the object of confidential obligation where the obligation related to information concerning the fraudulent conduct of his employer. Wood VC said:[30]