Factual and Procedural Background
Plaintiff, a zoological gardens company trading as "Amazing Animals," provides animals to the film and television industry and places paramount importance on animal welfare. Defendant is a campaigning charity aiming to stop the exploitation of animals in entertainment and exotic pet trade. In September 2015, two investigators for Defendant visited Plaintiff’s zoo during an open day, taking photographs and videos alongside numerous members of the public. Defendant later published some of these images online, alleging inhumane treatment and exploitation of animals performing tricks.
Plaintiff sued seeking an interim injunction based on three causes of action: breach of contract relating to a Code of Conduct restricting photography and use of images; breach of confidence concerning the photographs; and breach of performer’s rights under the Copyright, Designs and Patents Act 1988, asserting that the animal show constituted a protected "performance" by a human performer. Defendant denied the contract’s applicability, the confidentiality of the images, and the existence of performer’s rights in the context of animal acts, also asserting a public interest defence and fair dealing for criticism or review.
The case proceeded to a hearing on the application for an interim injunction, with the court considering the merits of the claims, the public interest, and the balance of rights under the Human Rights Act 1998, particularly the right to freedom of expression.
Legal Issues Presented
- Whether the Code of Conduct restricting photography and use of images formed part of the contract between Plaintiff and visitors, including Defendant’s investigators.
- Whether the photographs taken by Defendant constitute confidential information protected under the law of confidence.
- Whether the animal show qualifies as a "performance" under s.180(2)(d) of the Copyright, Designs and Patents Act 1988, thereby attracting performer’s rights.
- Whether Defendant’s publication of photographs and videos constitutes a breach of performer’s rights under ss.182 and 183 of the 1988 Act.
- The applicability of defences including public interest, fair dealing for criticism or review, and freedom of expression under Article 10 of the European Convention on Human Rights.
- The appropriate legal test for granting an interim injunction in light of s.12 of the Human Rights Act 1998 and relevant case law.
Arguments of the Parties
Plaintiff's Arguments
- The Code of Conduct restricting photography was prominently displayed at the zoo entrance and formed part of the contract with visitors.
- The photographs embody confidential information and their unauthorized use breaches confidence.
- The animal show qualifies as a "performance" under the 1988 Act, with the human trainer as the performer, and unauthorized filming and publication infringe performer’s rights.
- The publication of images has caused and continues to cause significant commercial damage, including loss of contracts.
- The court should grant an interim injunction based on the principles in American Cyanamid and s.12 of the Human Rights Act, balancing the risk of irreparable harm against freedom of expression.
Defendant's Arguments
- The Code of Conduct was not displayed at the entrance gate and so cannot form part of the contract.
- The photographs are not confidential as they depict animals well-known to the public and were taken openly alongside many other visitors.
- The animal show is not a "performance" by an individual under the 1988 Act because animals are not "individuals" capable of performing rights.
- The use of images is journalistic and in the public interest to expose alleged inhumane treatment of animals.
- Defendant relies on defences of fair dealing for criticism or review and freedom of expression under Article 10, arguing the claimants have not shown a likelihood of success sufficient to justify an interim injunction.
- The claim is effectively an attempt to circumvent the rule against prior restraint in defamation cases.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Olley v. Marlborough Court [1949] 1 KB 532 |
Notice displayed prior to contract formation can be incorporated into contract terms. |
Referenced in dispute over whether Code of Conduct notice was sufficiently displayed to visitors. |
| Doherty v. Allman [1878] 3 App Cas 709 |
Clear breach of contract justifies injunction at interim stage. |
Deemed not relevant as contract breach was disputed factually. |
| Coco v. Clark [1969] RPC 41 |
Requirement of identifiable confidential information for breach of confidence. |
Defendant argued photographs lacked quality of confidence; court rejected simplistic application. |
| Douglas v. Hello / OBG v. Allan [2007] UKHL 21 |
Photographs can be confidential information with commercial value irrespective of event confidentiality. |
Court applied principle to assess confidentiality of photographs despite public nature of event. |
| American Cyanamid [1975] AC 396 |
Test for granting interlocutory injunctions based on arguable case, risk of irreparable harm, and balance of convenience. |
Used as framework for considering interim injunction application. |
| Bonnard v. Perryman [1891] 2 Ch 269 |
Rule against prior restraint of publication in defamation cases. |
Defendant argued injunction attempts to circumvent this rule; court considered but found broader balancing test applicable. |
| Cream Holdings v. Banerjee [2004] UKHL 44 |
Application of s.12 Human Rights Act requiring likelihood of success before granting interim injunction affecting freedom of expression. |
Guided court’s approach to balancing freedom of expression with other rights in interim injunction context. |
| Interflora v. Marks and Spencer [2014] EWHC 4168 (Ch) |
Application of s.12 and balancing of rights in trademark and freedom of expression context. |
Referenced for approach to likelihood of success and balancing when considering interim relief. |
| Volkswagen v. Garcia [2013] EWHC 1832 (Ch) |
Balance between protecting economic interests and freedom of expression in academic publication context. |
Used to illustrate that harm to reputation alone may not justify interim injunction against journalistic publication. |
| PJS v. Newsgroup Corporation [2016] UKSC 26 |
Clarifies s.12 Human Rights Act application and balancing of Article 8 and 10 rights in interim injunctions. |
Recent Supreme Court authority adopted to guide balancing exercise and threshold for granting injunction. |
| Long Beach v. Global Witness [2007] EWHC 1980 (QB) |
Recognition of campaigning organisations as engaging in journalistic activity protected by freedom of expression. |
Supported Defendant’s status as a campaigning charity performing investigative journalism. |
| Pro Sieben Media v. Carlton UK Television [1999] 1 WLR 605 |
Fair dealing defence in context of copyright and defamation. |
Referenced regarding availability of fair dealing defence for criticism or review. |
| Ashdown v. Telegraph Group [2001] EWCA Civ 1142 |
Distinction between criticism of a work and criticism of individuals. |
Not directly addressed but noted as relevant to fair dealing considerations. |
| Campbell v. Mirror Group [2004] 2 AC 457 |
Use of photographs in journalistic judgment and freedom of expression. |
Supported Defendant’s editorial discretion in publishing photographs to support opinions. |
| McKennitt v. Ash [2006] EWCA Civ 1714 |
Balancing privacy and freedom of expression rights. |
Referenced as part of established methodology for balancing Convention rights. |
| Mosley v. News Group Newspapers Ltd [2008] EWHC 687 (QB) |
Balancing privacy and expression rights and proportionality of injunctions. |
Used to illustrate well-established balancing approach under Convention rights. |
Court's Reasoning and Analysis
The court began by examining the factual disputes, notably whether the Code of Conduct was displayed at the zoo entrance so as to form part of the contract. The evidence was conflicting, and the court found the issue was a factual dispute that could not be resolved on the interim application. Consequently, the contract claim was not a clear case justifying injunction.
Regarding breach of confidence, the court accepted that photographs can be confidential information even if the events depicted are not inherently confidential. The court rejected the simplistic argument that photographs of known animals cannot be confidential. However, the public interest defence was acknowledged as a potentially valid justification for Defendant’s use, especially given the campaigning nature of the charity and the alleged inhumane treatment depicted.
On performer’s rights, the court analyzed the statutory definition of "performance" and relevant academic commentary. It found that the animal show, involving a human trainer directing animals to perform tricks, constituted a "performance" by an individual within the meaning of the law. The court concluded that there was a strong arguable case that performer’s rights subsist and may have been infringed by unauthorized filming and publication. However, the fair dealing defence for criticism or review was also a viable argument for Defendant.
The court then addressed the application for an interim injunction, emphasizing the engagement of Article 10 rights to freedom of expression and the requirements of s.12 of the Human Rights Act. It applied the framework from Cream Holdings and the recent Supreme Court decision in PJS, requiring a strong likelihood of success on the merits before restraining publication. The court noted the journalistic nature of Defendant’s publications, the public interest in the subject matter, and the importance of freedom of expression in campaigning journalism.
Balancing the competing rights, the court found that although Plaintiff had arguable causes of action, the merits were finely balanced and did not meet the higher threshold required to justify an interim injunction restricting journalistic expression. The harm claimed by Plaintiff was primarily damage to reputation and business caused by published opinions and images, which the court found insufficient to override freedom of expression at this stage. The court also considered Defendant’s limited financial means and the broader public interest in allowing the campaign to continue.
Accordingly, the court refused the interim injunction, concluding that the interference with Defendant’s freedom of expression was not justified on the evidence and legal principles before trial.
Holding and Implications
The court refused the application for an interim injunction.
This decision means Defendant may continue to publish the photographs and videos in question pending trial. The refusal reflects the court's careful balancing of Plaintiff's economic and property rights against Defendant's freedom of expression and public interest journalism. No new legal precedent was established; rather, the court applied established principles from statutory law and case law concerning contractual incorporation, breach of confidence, performer's rights, and interim injunctions under the Human Rights Act and Convention rights.
The ruling underscores the high threshold required to restrain journalistic publications on an interim basis, particularly where public interest and freedom of expression are engaged, and highlights the importance of resolving factual disputes at trial rather than on interlocutory applications.