In Heythrop Zoological Gardens Limited (t/a Amazing Animals) and another v Captive Animals Protection Society, the Intellectual Property Enterprise Court refused to grant an interim injunction preventing publication of photographs and videos taken by animal rights campaigners. It held there was an insufficient likelihood that the claimant zoo would obtain a final injunction at trial to justify the interference with journalistic freedom of speech that an interim injunction would entail.
Heythrop Zoological Gardens Limited (trading as Amazing Animals) provides animals to the film and television industry. The Captive Animals Protection Society (“CAPS”) is a campaigning charity which aims to stop the exploitation of animals, particularly in circuses, zoos and in the exotic pet trade.
Heythrop Zoo is closed to the public except on designated open days. Two CAPS investigators visited the zoo at an open day in September 2015. Along with other members of the public they took photographs and videos of the animals being used for entertainment. CAPS posted the images to their website in February 2016; they described what was shown as animals being made to perform whilst exhibiting behaviour consistent with being kept in inhuman conditions. Amazing Animals denied any inhumane treatment and claimed the welfare of their animals was their top priority.
The CAPS articles did not go unnoticed in the wider press; there was coverage in the Daily Mail and The Times, and Chris Packham (TV presenter) refused to work with an animal he understood to have been provided by Amazing Animals.
Amazing Animals sued and sought an interim injunction preventing publication of the photographs and videos based on three causes of action:
- breach of contract (on the basis that all visitors to the zoo entered into a contract to comply with a code of conduct which limited photography to personal use and prohibited the uploading of photographs to the internet);
- breach of confidence (on the basis that the photographs contained confidential information); and
- breach of “non property” performance rights under sections 182 and 183 of the Copyright, Designs and Patents Act 1988 (“CDPA”). This was on the basis that an animal show involving the second claimant (an animal trainer and a director of the zoo) was a “performance” within section 180 of the CDPA, and CAPS was in breach under sections 182 and 183 for recording the show without his consent and publishing it on the internet.
Amazing Animals sought to rely on the American Cyanamid test; they claimed there was a high risk of irreparable damage and that damages would be an inadequate remedy, so the balance of convenience should favour the granting of an injunction. CAPS argued the real claim here was for damage to reputation and that Amazing Animals were trying to avoid the prior restraint restriction (the Bonnard v Perryman principle), which provides that injunctions are not usually granted to prevent publication in defamation cases. CAPS claimed that their right to freedom of expression under Article 10 of the European Convention on Human Rights was engaged and therefore the correct test for whether an interim order should be made would be based on section 12 of the Human Rights Act 1998 (“HRA”). Under section 12, the court should not grant an injunction to restrain publication before trial in a case where the right to freedom of expression is engaged unless it is satisfied that the claimant is likely to establish at trial that publication should not be allowed.
The court refused to grant the interim injunction. In his judgment, Mr Justice Birss relied upon Cream Holdings Limited v Banerjee  UKHL 44, which established that in order to obtain an interim injunction, the threshold under section 12 of the HRA was that the applicant would be “more likely than not” to succeed at trial. He rejected the defendant’s submission that the court should just characterise an application for an injunction which relied on causes of action other than defamation as an attempt to circumvent the Bonnard v Perryman principle.
In considering the balancing factors of this case, the court observed that this was not a claim brought to enforce economic rights against a commercial rival (Interflora Inc and another v Marks and Spencer plc and another  EWHC 4168 (Ch)); rather, CAPS’ publications were journalistic in nature. Save for some whistle-blower images, the images released by CAPS merely reflected what could be seen by the public on open days and were all similar to images already available on the internet indexed by reference to Heythrop. This undermined any likelihood the court would finally restrain publication of the images even if a contractual claim or breach of confidence claim was well founded.
There was much discussion concerning performance rights. Section 180(2) of the CDPA defines “performance” as “a live performance given by one or more individuals”. Birss J held that an animal performing tricks as instructed by a trainer was sufficient to engage “performance” rights under the CDPA. There would be no act without the trainer; their involvement made the act entertaining and it was therefore a type of variety act. Whilst the performer’s rights were found to exist, the matter of whether or not they were breached relied on whether the zoo had effectively displayed the code of conduct restricting the use of photographs, a factual dispute which could not be resolved at the interim hearing.
Birss J made particular comment that CAPS was a charity and campaigning organisation and that such organisations carry out an important journalistic function. He noted that the finances of CAPS concerned him and could be particularly significant as the court would consider granting damages at trial rather than a final injunction. However, if obtaining interim relief turned upon the financial capabilities of a campaigning charitable organisation like CAPS, it would be most unwelcome.
This is an interesting case, which raises the question whether a performance by animals engages performance rights under the CDPA. Birss J made clear in his judgment that it was the fact that the animals were performing with humans that qualified the act as a “performance”. Whilst the focus may have been on the animals, the trainer played a crucial part, and without the trainer’s involvement it would not have been a show at all. The case is also cause for celebration for NGOs and campaigning charities like CAPS, for whom it will be a substantiation of their Article 10 rights.