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Restraining publication of images taken at private zoo — Human Rights Act 1998 engaged

Brett Wilson LLP partner Iain Wilson is interviewed by Anne Bruce.  This article was first published on Lexis® PSL IP & IT analysis on 28 June 2016

In Heythrop Zoological Gardens Ltd and another v Captive Animals Protection Society the court rejected the claimant’s application for an interim injunction to prevent the publication of photographs and videos of animals taken at the zoo by an animal rights charity. Iain Wilson, partner at Brett Wilson LLP, comments on the case and its implications.

Original news

Heythrop Zoological Gardens Ltd and another v Captive Animals Protection Society [2016] EWHC 1370 (Ch), [2016] All ER (D) 126 (Jun).

The Chancery Division dismissed an application by the claimant zoo and its director for an interim injunction to restrain the defendant animal’s campaigning charity from using photographs or videos taken of animals at the zoo. Overall, balancing all factors, there was no sufficient likelihood that the claimant would obtain a final injunction at trial based on any of the causes of action to justify the interference with journalistic freedom of speech which an interim injunction would involve.

What was the factual background to this application for an interim injunction?

The first claimant was a company which trains wild animals for use in film and television. The second claimant was its director, James Clubb. The first claimant’s animals are kept at a private zoo. On various days throughout the year it allows members of the public to visit the zoo. The defendant is an animal rights organisation which campaigns against the exploitation of animals in captivity.

Two representatives of the defendant attended the park on an open day and took a series of photographs and videos of what they say were inhumane conditions and of the animals performing tricks.

The images/videos appeared in various online articles written by the defendant complaining about the animals’ treatment. This in turn prompted articles in the mainstream press, including The Daily Mail and The Times.

What were the causes of action brought against Heythrop? What remedy was sought?

The claimants sued for:

  • breach of contract
  • breach of confidence, and
  • breach of ‘non-property’ performance rights under sections 182 and 183 of the Copyright, Designs and Patents Act 1988

The claimants applied for an interim injunction restraining publication of the images.

The breach of contract claim was founded on an alleged breach of what the claimants said was a code of conduct which applied to all visitors to the zoo. The code permitted the taking of photographs solely for personal use and prohibited their uploading to the internet. The claimants argued that the code of conduct was part of the ticket contract and displayed on signs at the entrance and around the park. This was denied by the defendant.

The breach of confidence claim was based on the claimants’ assertion that the photographs embodied confidential information. The defendants disputed that images of animals were confidential on the grounds that everyone knows what particular animals look like and because members of the public were generally permitted to take photographs of the animals. It also argued that its article 10 of the European Convention on Human Rights (ECHR) freedom of expression rights were engaged as there was a public interest in exposing what they said was animal cruelty.

The claimants claimed that Mr Clubb was a ‘performer’ for the purposes of the performance rights claim and he had not consented to the performance being filmed and published by the defendant. The defendant claimed that, in reality, the performers were the animals who had no such rights.

What other complaints were central to the case (but weren’t pleaded)?

The negative stories in the mainstream press were clearly a concern for the claimants. Wildlife TV presenter Chris Packham announced that he would not use animals from the park, and contracts with the BBC were apparently lost. This attracted further press interest. The defendant argued that the claim was a defamation claim in disguise as the claimant’s central objective was to protect its reputation. It claimed that by deploying other causes of action the claimants were attempting to circumvent the ‘law of prior restraint’ in Bonnard v Perryman [1891] 2 Ch 269, under which the court should not normally grant an interim injunction where a defendant indicates they will attempt to prove the truthfulness of an allegation at trial. In the event, Birss J said:

‘It does not add much to the analysis to seek to answer the question whether the claim is an attempt to circumvent a rule in defamation.’

What conclusions did Birss J come to regarding the causes of action?

Birss J agreed that the claimants had arguable causes of action and that some parts of the claims were strong. However, the defendant equally had fully arguable defences to the claims, much of which turned on the facts concerning the code of conduct (eg where, if anywhere, it was displayed).

Birss J disagreed with the claimants’ argument that the correct test in determining whether an interim injunction should be imposed were the three American Cyanamid factors (as laid down in American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504):

  • an arguable case
  • unquantifiable harm, and
  • balance of convenience or justice

He found that the defendant’s ECHR, art 10 freedom of expression rights were sufficiently engaged, thus the appropriate test was section 12 of the Human Rights Act 1998 (HRA 1998), which carries extra safeguards where a court is considering whether to grant injunctive relief which would affect freedom of expression.

HRA 1998, s 12(3) provides that:

‘no such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.’

HRA 1998, s 12(4) follows that:

‘The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public or (ii) it is, or would be, in the public interest for the material to be published (b) any relevant privacy code.’

Birss J referred to the case of PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] All ER (D) 135 (May) (known as the ‘celebrity threesome’ injunction case) which had been handed down the previous day and confirmed that in freedom of expression cases, HRA 1998, s 12 raises the hurdle which claimants must overcome to obtain an interim injunction to something higher than the American Cyanamid test.

The claim for breach of contract required consideration of evidence such as the display and content of signs. This could not be resolved on an interim basis. In terms of the performer’s rights claim, Birss J found that there was clearly an arguable defence of fair dealing. He noted that the taking of photographs was generally permitted and the photographs had clearly not been taken for commercial gain. Similar images already appeared on the internet. He added:

‘The issue of animal treatment is clearly a matter of current public interest. That alone demonstrates that this case is a long way from a case about celebrity gossip. Also the question of the use of animals in entertainment and teaching animals to perform tricks for the public is also, in my judgment, a matter of current public interest. It is a topic on which the opinions of the public clearly vary. CAPS says this is immoral and view it as such and the claimants clearly profoundly disagree. Both sides’ views are sincerely held.’

As such, there was a public interest in the publication of such images for the purposes of debate. He considered that the publications were journalistic in nature within the meaning of HRA 1998, s 12(4).

Birss J considered it unlikely that a permanent injunction would be granted after trial and accordingly, pursuant to HRA 1998, refused to grant an interim injunction. He explained at para [65]:

‘Save for the whistleblower images, all the images are matters which the public could see on the open days and they are all images of a similar nature to images which already appear on the internet indexed by reference to Heythrop. That seriously undermines the likelihood that the court would finally restrain publication of those images even if a claim based on contract or confidence was well founded. Even if those claims were well founded, the remedy is likely to be damages. These publications do not compete with the claimant’s business in selling animal photographs. Referring to the whistleblower images, the only cause of action is breach of confidence but those particular images have the strongest public interest defence in any event since they relate to alleged inhumane treatment of a polar bear and the conditions in which it was kept.’

What else is of interest in this case?

The claimants made the valid argument that an award of damages would not be an adequate remedy as the defendant had limited financial means. It was a charity and money it received was held in another charitable trust. While the judge appeared sympathetic to the claimant’s position he held that:

‘[…] it would not be welcome if the issue of interim relief were to turn on the relative financial strength of a campaigning charitable organisation like the defendants.’

It was relevant that the defendants’ views were sincere and were clearly journalistic in nature. The judge indicated that had this not been the case he would have performed a closer analysis of its ability to pay damages.

This case is very fact specific, what general messages (if any) can lawyers take from this claim?

The case is a reminder to lawyers that where interim relief is being sought and freedom of expression is an issue, regardless of the cause of action, the starting point will normally be HRA 1998, s 12.

Given the raised bar for interim relief, careful regard will have to be given to the decision to issue proceedings where there is a genuine public interest, particularly where damages will not be an adequate remedy—either because the damage is intangible or a defendant has limited means.

Privacy injunctions or ‘gagging orders’ have featured heavily in the press following the PJS case. This case shows that, contrary to the impression given by certain sections of the press, the courts will not restrain freedom of expression where there is a genuine and overriding public interest. As Birss J acknowledged, the debate in Heythrop amounted to ‘high value speech’ and was far removed from cases such as PJS involving ‘celebrity gossip’.

Click here to find out how Brett Wilson LLP privacy lawyers can assist you if you believe your confidence has been breached.


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Articles are intended as an introduction to the topic and do not constitute legal advice.