Heythrop Zoological Gardens Ltd and another v Captive Animals Protection Society
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Birss |
| Judgment Date | 20 May 2016 |
| Neutral Citation | [2016] EWHC 1370 (Ch) |
| Court | Chancery Division |
| Date | 20 May 2016 |
| Docket Number | No. HC-2016-001130 |
[2016] EWHC 1370 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Rolls Building
Mr. Justice Birss
No. HC-2016-001130
Ms. J. Wells (instructed by Bindmans Solicitors) appeared on behalf of the Claimants.
Mr. D. Hirst (instructed by Roythornes Solicitors) appeared on behalf of the Defendant.
Heythrop Zoological Gardens Limited (trading as "Amazing Animals") provides animals to the film and television industry including lions, sloths, monkeys, tigers and other creatures. Heythrop's evidence emphasises the paramount importance which it places on the welfare of all the animals in its care.
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 pets trade.
What happened in this case is as follows: Heythrop's Zoological Garden Zoo is closed to the public, but it has open days. Ms. Wright and Ms. Eyre, who are described as investigators for CAPS, visited the zoo in September 2015. They took photographs and videos along with numerous other members of the public. The number of members of the public was about a hundred or possibly more. Unless it is necessary to be specific from now on, I will refer to photographs or images as to include both still photographs and video.
Photographs were used by the charity in articles which were posted on the internet (at least one or two on CAPS own website) in about February 2016. The images show animals being used for entertainment. CAPS describes what is shown as animals being made to perform tricks in public. CAPS also says that the images show inhumane conditions in which some of the animals are kept and show some of them exhibiting stereotypical behaviours, such as waving their heads from side to side, which is consistent with being kept in inhumane conditions.
There is no dispute that on the open day Heythrop put on for what it regards as an entertaining animal show for its visitors. Heythrop denies any inhumane treatment for any of its animals. For Heythrop the welfare of the animals in its care is paramount.
CAPS' articles led to comment in the wider press. There was an article in the Daily Mail and also recently, on 6 th May 2016, there was an article in The Times newspaper which referred to the photographs (although it did not reproduce them). Mr. Chris Packham, who is a well-known television presenter involved in wildlife and animals, refused to work with an animal which he understood had been provided by Amazing Animals recently and that was also a matter of press comment.
Heythrop have sued and seek an interim injunction based on three causes of action. The first is breach of contract on the basis that part of the ticket contract which all visitors entered into includes a Code of Conduct. That Code provides that photographs may only be used for personal use, may not be uploaded to the internet and not used for any commercial or financial gain. All of that is subject to the permission of Heythrop. Heythrop also says that the Code of Conduct was prominently displayed around the zoo and, importantly for the contract case, prominently displayed at the entrance gate so that it would be visible before anyone bought a ticket at the entrance.
The second cause of action is breach of confidence on the basis that the photographs are to be regarded, in all the circumstances, as embodying confidential information. The bulk of the relevant photographs were taken in September 2015 by Ms Wright or Ms Eyre. A few of the photographs which were used by CAPS were not taken in September 2015 but were taken by a member of the public in 2013 and CAPS has also used some photographs from a person described as a "whistleblower" who is an ex-employee of the claimants.
The third cause of action is a breach of "non-property" performance rights under s.182 and s.183 of the Copyright, Designs and Patents Act 1988. The relevant performer, according to the claimant, was Mr. Clubb. He is the second claimant and a director of Heythrop. The claimants submit that the entertaining animal show was a "performance" under s.180 in which performer's rights subsist. It submits that that right was breached under s.182 because the performance was filmed, in other words a recording was made of a performance without Mr. Clubb's consent. The reason filming was without consent was because the consent was limited by the Code of Conduct. That only permitted filming for personal use and the people making the film (the investigators or CAPS acting via the investigators) were not making it for their personal use. Moreover publication of that video footage on the internet was a breach of the performer's rights under s.183 as it amounts to showing or playing in public or communicating to the public a substantial part of the performance without consent by means of a recording made without consent.
CAPS' case on the merits as regards these three causes of action is as follows: First, CAPS denies that the Code of Conduct was there at all, but certainly not at the gate. Therefore, since the Code was not displayed at the gate, it cannot form part of the contract for entry to the zoo. Second, CAPS denies that the subject matter of the photographs was confidential. It contends that the claimants have not identified the confidential information relied on with any specificity. CAPS argues that, for example, a picture of a tiger cannot have the necessary quality of confidence (see Coco v. Clark [1969] RPC 41) because we all know what a tiger looks like. CAPS also contends that no obligation of confidence was imparted on the investigators since the Code of Conduct was not part of the contract for entry and nor was the Code drawn to the investigators' attention. CAPS submits that the public were taking numerous photographs on the day and so photographs of the same nature taken at the same time cannot be confidential either. CAPS also denies that the use of the photographs could be a breach of confidence in any event. That is because the use made of them was and is in order to expose matters of specific public interest. The matters of public interest are the alleged inhumane treatment of the animals and the use by Heythrop of the animals to put on entertainment shows and to do tricks.
Third, as regards performer's rights, CAPS denies that an animal show is capable of being a "performance" under s.180(2) CDPA 1988 because the real performers were animals not the human being (Mr Clubb). Animals are not "individuals" under the Act nor can they be qualifying individuals. CAPS denies a breach under s.182 or s.183 on the basis that because the Code of Conduct was not part of the contract it cannot be said that the videos or photos were taken without permission. Moreover, it relies on a defence of fair dealing in relation to its publications.
In reply on the contract, Heythrop says that the fact the CAPS investigators claim they did not see the notice is not determinative. Based on the well-known authority of Olley v. Marlborough Court [1949] 1 KB 532, Heythrop contends it is enough if the notice was reasonably prominent and as to that Heythrop contends the evidence of Mr. Clubb shows that it was. There was a further debate about whether the terms were sufficiently unusual to require to be brought specifically to the attention of any visitors, but I do not need to be concerned with that.
Turning to the interim injunction application, Heythrop contends that the interim injunction should be granted on a number of bases. On the contract claim, based on Doherty v. Allman [1878] 3 App Cas 709, Heythrop submits that prima facie the court ought to grant an injunction since there is a clear breach of contract and therefore an entitlement to relief. Subject to that and taking all three causes of action, Heythrop submits the correct approach is that based on American Cyanamid [1975] AC 396. There is a risk of irreparable harm to the claimant. The risk is high. The publication has already caused significant commercial damage to its business and there is evidence that contracts have been stopped, for example with the BBC. This harm is likely to continue. Although the initial publication took place in February the matter is still current and is still causing damage. Heythrop refers to the article in The Times about a week ago. Heythrop submits that the unquantifiable harm caused to CAPS by the injunction would be low and, if CAPS wins the case, it can always use the photographs afterwards. CAPS has very little money; its funds are held by another charitable trust and so it could not pay any damages to Heythrop in any event.
One point that was raised in the evidence was a concern about whether publication of these photographs would increase the risk of harassment to staff from animal rights extremists. Although that concern was mentioned, the point was not pressed and I am satisfied that there is no material risk of that in this case caused by this coverage.
CAPS contends that the real complaint in this case is a complaint of damage to reputation and that this raises the familiar problems of whether there should be pre-trial restraint in libel cases (citing Bonnard v. Perryman [1891] 2 Ch 269). CAPS submits that freedom of speech is a very important consideration in this case and the fact that Heythrop did not sue for libel does not change...
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