03/02/2020
Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016)
applying any sort of lower standard to the question of prospects of success than would be the general
approach under s.12 identified in Cream Holdings, i.e. that success at trial is more likely than not.
64. Furthermore, I note that s12(3) refers to a likelihood that "publication will not be allowed". It seems to
me that success required is not simply success in terms of the cause of action. It must be success
relating to the prospects of obtaining an injunction based on that cause of action which would restrain
publication.
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. As regards the claim based on performer's rights, given the journalistic
nature of the publication there is a clearly arguable fair dealing defence.
66. Finally I will mention a factor which has concerned me, that is the finances of CAPS, which could be
said to be particularly significant since I am considering the prospect of obtaining damages at trial
rather than a final injunction. If the activities of the defendant were not so clearly journalistic in nature
then I would conduct a closer analysis of the ability of CAPS to pay damages and I would have been
concerned by the fact that the defendant is not likely to be in a position to pay very substantial damages
in this case. However, campaigning charitable organisations will often have less financial strength than
commercial claimants, although I should make it clear that I do not suggest Heythrop is a particularly
large or rich organisation either. But when campaigning freedom of speech and harm to a commercial
reputation are the key issues, 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.
67. Overall, in my judgment there is not a sufficient likelihood that the claimant will obtain a final
injunction at trial based on any of these causes of action to justify the interference with journalistic
freedom of speech which an interim injunction would involve. I will refuse the interim injunction.
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