03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) the subject matter of the photographs was confidential. It contends that the claimants have not identified the confidential information relied on with any specificity. CAPS argues that, for example, a picture of a tiger cannot have the necessary quality of confidence (see Coco v. Clark [1969] RPC 41) because we all know what a tiger looks like. CAPS also contends that no obligation of confidence was imparted on the investigators since the Code of Conduct was not part of the contract for entry and nor was the Code drawn to the investigators' attention. CAPS submits that the public were taking numerous photographs on the day and so photographs of the same nature taken at the same time cannot be confidential either. CAPS also denies that the use of the photographs could be a breach of confidence in any event. That is because the use made of them was and is in order to expose matters of specific public interest. The matters of public interest are the alleged inhumane treatment of the animals and the use by Heythrop of the animals to put on entertainment shows and to do tricks. 11. Third, as regards performer's rights, CAPS denies that an animal show is capable of being a "performance" under s.180(2) CDPA 1988 because the real performers were animals not the human being (Mr Clubb). Animals are not "individuals" under the Act nor can they be qualifying individuals. CAPS denies a breach under s.182 or s.183 on the basis that because the Code of Conduct was not part of the contract it cannot be said that the videos or photos were taken without permission. Moreover, it relies on a defence of fair dealing in relation to its publications. 12. In reply on the contract, Heythrop says that the fact the CAPS investigators claim they did not see the notice is not determinative. Based on the well-known authority of Olley v. Marlborough Court [1949] 1 KB 532, Heythrop contends it is enough if the notice was reasonably prominent and as to that Heythrop contends the evidence of Mr. Clubb shows that it was. There was a further debate about whether the terms were sufficiently unusual to require to be brought specifically to the attention of any visitors, but I do not need to be concerned with that. 13. Turning to the interim injunction application, Heythrop contends that the interim injunction should be granted on a number of bases. On the contract claim, based on Doherty v. Allman [1878] 3 App Cas 709, Heythrop submits that prima facie the court ought to grant an injunction since there is a clear breach of contract and therefore an entitlement to relief. Subject to that and taking all three causes of action, Heythrop submits the correct approach is that based on American Cyanamid [1975] AC 396. There is a risk of irreparable harm to the claimant. The risk is high. The publication has already caused significant commercial damage to its business and there is evidence that contracts have been stopped, for example with the BBC. This harm is likely to continue. Although the initial publication took place in February the matter is still current and is still causing damage. Heythrop refers to the article in The Times about a week ago. Heythrop submits that the unquantifiable harm caused to CAPS by the injunction would be low and, if CAPS wins the case, it can always use the photographs afterwards. CAPS has very little money; its funds are held by another charitable trust and so it could not pay any damages to Heythrop in any event. 14. One point that was raised in the evidence was a concern about whether publication of these photographs would increase the risk of harassment to staff from animal rights extremists. Although that concern was mentioned, the point was not pressed and I am satisfied that there is no material risk of that in this case caused by this coverage. 15. CAPS contends that the real complaint in this case is a complaint of damage to reputation and that this raises the familiar problems of whether there should be pre-trial restraint in libel cases (citing Bonnard v. Perryman [1891] 2 Ch 269). CAPS submits that freedom of speech is a very important consideration in this case and the fact that Heythrop did not sue for libel does not change that. Counsel referred to a series of cases which involved attempts to avoid the rule in Bonnard v. Perryman by relying on causes of action other than libel, such as breach of confidence. These attempts failed. The cases mentioned were Woodward v. Hutchins [1977] 1 WLR 760, Service Corporation v. Channel 4 [1999] EMLR 83, Tillery Valley [2004] EWHC 1075 (Ch), Terry v. Persons Unknown [2010] EMLR 16 and Viagogo v Myles [2012] EWHC 433 (Ch). 16. CAPS also contends that this case engages s.12 of the Human Rights Act (see Cream Holdings v. Banerjee [2005] 1 AC 253) and involves a balance of rights protected by Art.10 (freedom of speech) of the Convention against other rights also protected by the Convention. CAPS contends that its conduct www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 3/13