June 27, 2016

The claimant, Heythrop Zoological Gardens Limited (trading as “Amazing Animals”) provided animals to the film and television industry including lions, sloths, monkeys, tigers and other creatures.

The defendant, Captive Animals Protection Society (CAPS) was a campaigning charity, which aims to stop the exploitation of animals, particularly in circuses, zoos and the exotic pets trade.

CAPS posted on the internet photographs and videos that it had taken when visiting the zoo in September 2015 during an open day, which included an “entertaining animal show”.  The images showed what CAPS described in accompanying text as animals being made to perform tricks in public and animals being kept in inhumane conditions. Heythrop denied any inhumane treatment of any of its animals, saying that the welfare of the animals in its care was paramount.

Heythrop issued proceedings against CAPS seeking an interim injunction based on three causes of action: breach of contract, breach of confidence and breach of “non-property” performance rights under ss 182 and 183 of the Copyright, Designs and Patents Act 1988.

Mr Justice Birss found that Heythrop had an arguable case in respect of all three causes of action.  Some parts of the claims were strong, he said, and other parts were at least properly arguable.  Equally, CAPS had fully arguable defences to all the claims.

As for the interim injunction, Birss J found that Article 10 of the Convention on Human Rights (freedom of expression) was at least sufficiently engaged to mean that the analysis of the governing law had to start with s 12 and Cream Holdings v Banerjee [2005] 1 AC 253.   It involved a balance of rights protected by Article 10 against other rights also protected by the Convention, Birss J said.

Birss J noted that Heythrop had property and economic rights and that the property rights were protected expressly by Article 1 of Protocol 1 of the ECHR.  The contractual and confidentiality rights and the performer’s rights all played a legitimate role in protecting and furthering the legitimate aims of Heythrop’s business, Birss J said.  Since Heythrop’s rights protected a business, they were protected by Article 1.  Overall, Heythrop’s causes of action protected legitimate commercial interests.

As for CAPS, Birss J found that the publications in question were clearly journalistic in nature.  Further, the issue of animal treatment was clearly a matter of current public interest.  It was true that the campaign could continue without the photographs, but that did not mean that the use of the photographs did not engage Article 10.  The photographs provided evidence to support the opinions that CAPS was expressing and leant weight to it.

Balancing the Article 10 rights against the Article 1 rights, Birss J found that the causes of action relied on were all economic in nature and they were ranged firmly against the right of freedom of speech being exercised in a campaigning journalistic manner.  Further, he said, the harm relied on to justify the interim injunction was harm to reputation.  For that reason there was no justification for applying any sort of lower standard to the question of prospects of success than would be the general approach under s 12 identified in Cream Holdings, i.e. that success at trial is “more likely than not”.

Birss J found that most of the images in question were matters that the public could see on an open day at Heythrop, and they were all images of a similar nature to images that already appeared on the internet indexed by reference to Heythrop.  That seriously undermined the likelihood that the court would finally restrain publication of those images even if a claim based on contract or confidence was well founded, he said.  Even if those claims were well founded, the remedy was likely to be damages.

Overall, Birss J said, there was not a sufficient likelihood that Heythrop would obtain a final injunction at trial based on any of the causes of action to justify the interference with journalistic freedom of speech that an interim injunction would involve.  He therefore refused the interim injunction.  (Heythrop Zoological Gardens Ltd v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) – to read the judgment in full, click here).