In the case of Heythrop Zoological Gardens Ltd (trading as Amazing Animals) v Captive Animals Protection Society ( EWHC 1370 (Ch)) Birss J refused to grant a company which specialises in training animals for use in the film industry an interim injunction to prevent a campaign group from using photographs and video taken at its zoo.
An individual from CAPS had visited the zoo on one of its occasional open days and bought an entry ticket. Some videos and photographs were taken of animals – some showed a performance featuring a trainer and an animal doing tricks.
The claimant claimed breach of contract, breach of confidentiality, and breach of non-property performer’s rights and sought an interim injunction to restrain the continuing use of the photographs and video by CAPs.
The claimant argued that the American Cyanamid test for an interim injunction should be applied. It claimed that it had an arguable case, damages were not an adequate remedy and that balance of convenience favoured the grant of an injunction.
CAPS argued that the real claim was for damage to reputation, and that Heythrop Zoowas trying to get round the restriction on prior restraint which applied in defamation cases.
It also argued that the case engaged its rights to freedom of expression under Article 10 of the European Convention on Human Rights, and that the correct test for whether an interim order should be made was based on section 12 of the Human Rights Act 1998.
Birss J that it was not useful to determine if the firm was trying to get round a defamation claim – but it had property and economic rights, and its performer’s rights were protected.
However, he held that Article 10 was sufficiently engaged – so the correct test was that of section 12 of the Human Rights Act, and whether Amazing Animals prospects of success at trial were sufficiently favourable to justify the interim injunction. The correct test approach was summarised in PJS v News Group Newspapers Ltd ( UKSC 26).
In this case, CAPS was clearly acting in the public interest. The debate about animal tricks was not clear cut, and campaigning organisations had an important journalistic function.
The Judge noted that the website run by CAPS was not a business rival to Amazing Animals. The fact that its campaign could take place without the photographs did not reduce the importance of Article 10 – the photographs added weight to the campaign and their use was a matter of journalistic judgment.
All of the subject-matter could be seen by the public on open days at the zoo, which seriously undermined the likelihood that the court would ultimately restrain publication of the photographs after trial. There was also an insufficient likelihood that the claimant would obtain a permanent injunction.
Birss J held that an animal doing tricks under a trainer’s direction was capable of being a “variety act” so as to engage the performer’s rights protected by section 180 (2) of the Copyright, Designs and Patents Act 1988 (“CDPA”).
The CDPA did not define “variety act”. The parties had referred to television talent shows which included animal acts alongside singers and other performances, and it was justifiable as a matter of policy that the animal acts should have performer’s rights in the same way as the others. The claim of performer’s rights was supported by the acts shown at the zoo having been rehearsed.
While the focus was on the animal, there would be no act without the trainer’s involvement. The act was a type of variety performance; the trainer’s intervention made the performance worth watching and both trainer and animal played necessary parts.
It was more than merely arguable that performer’s rights existed – but whether they were breached depended on consent and the zoo’s code of conduct. The question of whether the code of conduct was displayed correctly at the gate of the zoo so as to be part of the ticket contract was a factual dispute and could not be resolved at an interim hearing.
CAPS also had arguable defences of criticism or fair dealing.
On the breach of confidence issue, Amazing Animals argued that the photographs had commercial value and were capable of being subject to confidentiality even if the events depicted were not confidential.
Birss J held that the case differed from Douglas v Hello! Ltd (No.1) ( QB 967) as it was less clear that the terms were brought to the CAPS’ notice, and the public was free to take photographs for personal use. The public interest defence might apply in relation to a campaign about animal welfare.
As a result, the application for an interim injunction was dismissed.
In this case, the claimant relied on a series of causes of action in an attempt to prevent a campaigning group using video footage taken in its zoo as part of an animal welfare campaign. The filming was not surreptitious Visitors to the zoo were entitled to take photographs and video and, in the absence of clear contractual provision, it is difficult to see how zoo could prevent this material being used for campaigning purposes.
In cases such as Service Corporation International plc v Channel Four Television ( EMLR 83) and Tillery Valley Foods v Channel Four Television ( EWHC 1075 (Ch)) and the Courts rejected applications for interim injunctions to prevent the broadcast of film taken on the claimants’ premises, inter alia, on the ground that the claims were abusive attempts to get round the rule in Bonnard v Perryman. This case differed from that line of authority in two interesting respects.
First, this was a case involving an NGO and not a media organisation. However, the Judge rightly held that Article 10 was engaged and that the CAPs were, in substance, exercising “journalistic” rights.
Second the Judge did not find that the claim was a “disguised defamation claim” but, rather, required the claimant to demonstrate that it was likely to succeed at trial – as set out in section 12(3) of the Human Rights Act 1998. The claimant could not demonstrate that it was more likely than not to obtain an injunction at trial so its claim for an interim injunction was dismissed.
The most difficult issue in the case appears to have been that concerning “performing rights”. Although it was arguable that the animal training shown on the video was a “variety act” for the purposes of the CDPA, the claimant was unable to show that it was likely overcome public interest and fair dealing defences.
The decision will be welcomed by campaigners as a vindication of the Article 10 rights of campaigning NGOs.