03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) performer's property rights (s191A 1988 Act) but it seems to me that they can still be protected by Art.1, Protocol 1. 58. For a commercial enterprise like Heythrop, whose business is in hiring out its animals and selling images of its animals, the contractual and confidentiality rights and the performer's rights play a legitimate role in protecting and furthering the legitimate aims of its business. Since Heythrop's rights protect a business I will take it they are protected by that Article. The defendant did not suggest otherwise. The claimant's business has a legitimate aim in preventing unfair competition and preventing a second commercial source of photographs/videos of the animals in its care being available. I say "commercial source" because its legitimate interests are concerned with competition. Unrestrained access to images on the internet could also interfere with its business. Overall then, the claimants' causes of action do protect legitimate commercial interests. 59. Considering the defendant, the publications in this case are clearly journalistic in nature (s.12(4) of the Human Rights Act) and that is high value speech, the protection of which is a key aspect of Art.10. 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. 60. CAPS is a charity and a campaigning organisation. Today campaigning organisations carry out an important journalistic function. This is also recognised in Long Beach v. Global Witness [2007] EWHC 1980 (QB), cited by CAPS. The fact that such organisations are not newspapers does not mean that they do not carry out a vital role in a democratic society which is, in effect, investigative journalism. It is true that the CAPS' website includes a button "Donate Now" alongside the article which the claimant referred to, but CAPS is not a business rival of Amazing Animals in any sense. Raising funds in this way is no different from a campaigning newspaper requiring people to pay for the newspaper or putting its contents on the internet behind a pay wall. I do not accept Heythrop's submission that anything can be made of the specific proximity of the button to the article. It does not turn what is clearly a journalistic article into some different form of non-journalistic commercial activity. It is also true that the CAPS website includes a further button which someone seeing the article could click on to complain to the BBC. That is part and parcel of the campaigning nature of the defendant's undertaking. 61. It is true that the campaign could still continue without the photographs but, in my judgment, that does not mean that the use of the photographs does not engage Art.10. These photographs provide evidence to support the opinions which CAPS is expressing and they lend weight to it. Including photographs in this way is a matter of journalistic judgment (see Campbell v. Mirror Group, [2004] 2 AC 457 at paras.112 and 113). 62. I turn to balance these factors. It seems to me the key things are this: First, this is not a claim brought to enforce economic rights against a commercial rival such as in Interflora. The publications in this case are journalistic. Second, although economic rights are being relied on, the key justification for interim injunction is injury to reputation. That injury then has a knock-on effect on the business, but it is harm to reputation which is at the core of the claim for the interim injunction. So this case is not like Volkswagen in which the important harm was not harm to reputation, but to thousands of motor vehicles being stolen. The harm relied on by Heythrop is not caused by competition from CAPS selling images of the animals so that the Amazing Animals business will sell fewer images nor is it a case in which an individual's privacy is in issue. The purpose and basis of the interim relief is the protection of harm to reputation of the claimant caused by publications of a clearly journalistic nature. In that sense it is like Service Corp, Tillery Valley and Viagogo. 63. Here the causes of action relied on are all economic in nature and they are ranged firmly against the right of freedom of speech being exercised in a campaigning journalistic manner and the harm relied on to justify the interim injunction is harm to reputation. For that reason there is no justification for www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 12/13