Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society

Where an interim injunction would restrain journalistic material engaging freedom of expression, Human Rights Act 1998, section 12 and Cream Holdings v Banerjee require prospects of obtaining a final restraint to be sufficiently favourable in the particular circumstances. The usual approach is that success should probably be more likely than not, especially where the relief principally protects commercial reputation rather than property or privacy interests.

The court must balance the claimant’s rights against the respondent’s Article 10 rights. It should not determine the application merely by characterising non-defamation claims as an attempt to evade the rule against prior restraint in libel cases. An animal-and-handler presentation may constitute a performance under section 180(2)(d) of the Copyright, Designs and Patents Act 1988, but a substantial fair-dealing defence may remain available.

The claimants, an animal provider and its director, sought an interim injunction restraining the defendant campaigning charity from publishing photographs and videos taken at open days and supplied by a former employee. The claims were based on breach of contract, breach of confidence, and infringement of performers’ rights under the Copyright, Designs and Patents Act 1988.

The defendant denied liability and relied on public interest, freedom of expression and fair dealing. The principal issue was whether the claimants had shown a sufficient likelihood of obtaining a final injunction to justify interim restraint of publications said to be journalistic and concerned with the treatment and use of animals.

1. Interim relief refused. The claimants had arguable claims, but there was not a sufficient likelihood that they would obtain a final injunction at trial to justify restraining the defendant’s journalistic freedom of expression.
2. On contract, the evidence disclosed a disputed issue as to whether the Code of Conduct was displayed at the entrance and incorporated into the ticket contract. The issue could not be resolved on an interim application. Accordingly, Doherty v Allman did not apply because this was not a clear case of breach.
3. Photographs may constitute confidential information even where the events depicted are not confidential. The question depends on the circumstances. The claims based on the 2015 photographs, 2013 photographs and whistleblower material were each arguable, as were the public-interest defences.
4. Under section 180(2)(d) of the Copyright, Designs and Patents Act 1988, a rehearsed presentation involving an animal and a human handler may be a performance of a variety act or similar presentation. The human handler’s intervention was a necessary part of the lion and tiger show. The claimants therefore had a good arguable case that performers’ rights subsisted. Infringement under sections 182 and 183 was also arguable, including whether the extracts represented a substantial part, assessed qualitatively. However, fair dealing for criticism or review under paragraph 2(1) of Schedule 2 remained a good arguable defence.
5. Article 10 was sufficiently engaged. Section 12 and Cream Holdings v Banerjee governed the analysis. The court had to identify the rights relied on and balance them against freedom of expression. It was unnecessary to decide whether the claims were an attempt to circumvent Bonnard v Perryman.
6. The defendant’s publications were journalistic and concerned matters of current public interest. The claimants principally relied on reputational harm and consequential business loss, rather than protection of privacy, security or competition. Most images showed matters visible to the public and resembled images already available online. Even if the claims succeeded, damages were more likely than a final injunction. The financial weakness of the campaigning charity did not justify granting relief where journalistic freedom of expression and commercial reputation were the central competing interests.
7. The interim injunction was refused.