03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) 2. 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. 3. 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. 4. 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. 5. 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. 6. CAPS' articles led to comment in the wider press. There was an article in the Daily Mail and also recently, on 6th 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. 7. 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. 8. 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 exemployee of the claimants. 9. 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. 10. 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 www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 2/13