03/02/2020 Heythrop Zoological Gardens Ltd (t/a Amazing Animals) & Anor v Captive Animals Protection Society [2016] EWHC 1370 (Ch) (20 May 2016) 23. As the parties recognise, I cannot resolve this factual dispute on this application. Both sides, in my judgment, have a perfectly sensible arguable case on the merits in relation to the contract claim. Accordingly Doherty v. Allman is not relevant. This is not a case of a clear breach of contract. The issues are properly arguable either way depending on a disputed fact which could only be resolved at trial. I should note that this contract argument only applies to the 2015 photographs and not to the 2013 or the whistleblower photographs. Breach of confidence 24. The claimants submit that the photographs can have protection under the law of confidence on their own - as distinct from any question whether the events which were photographed are confidential. This is based on the case known as Douglas v. Hello or OBG v. Allan [2007] UKHL 21 and in particular to the judgment of Lord Hoffman at paras.112 to 118. The point is that in Douglas v. Hello the photographs themselves had a commercial value, which was illustrated by the fact that OK Magazine had paid for the exclusive rights to the photographs of the celebrity wedding, and so those photographs could be protected as confidential information irrespective of whether the events photographed could be said to be confidential. 25. I take from that case that photographs are capable of being treated as confidential information protectable under the law of confidence, even if the events depicted in the images were not. It all depends on the facts. Accordingly I do not accept a key aspect of the defendant's case that the breach of confidence claim can effectively be discounted because the confidential information is not properly identified or because the photographs are to be regarded as just an images of animals. The fact that we know what a tiger looks like is not the issue. Moreover, since it is part of Heythrop's business to sell images of its animals, there is nothing inherently odd about the proposition that photographs of its animals are protectable although that may be a different in relation to photographs of the surroundings. 26. Nevertheless, the facts of this case are different from those in Douglas v Hello. First, in Douglas v. Hello, the wedding guests all knew that the wedding would be covered by the magazine. It is less clear in this case that the restrictive terms were brought to the visitor's attention, which takes one back to the disputed issue of fact about the Code of Conduct. Second, in this case the public were free to take photographs, although the Code of Conduct (assuming it is applicable) restricts that use to personal use and purports to forbid visitors from putting them on the internet. I say purports because the evidence is clear that the public in fact do post on the internet images of the Heythrop Zoo which they have taken on the open days. I acknowledge that the fact that a large number of such photographs have been posted on the internet does not necessarily mean that there is a very large number of different people doing it. 27. What of the public interest argument as an answer to breach of confidence? This is an important element in CAPS' defence and in my judgment it may apply. On the face of it the material is relevant to a campaign on a matter of current public debate about the use of animals in entertainment and possible inhumane treatment. 28. In relation to the 2013 photographs, breach of confidence is the only claim which is available to Heythrop. The evidence on that is that the Code of Conduct was brought to the attention of the relevant visitors. This evidence is more certain than it was in relation to 2015 because of the way in which tickets were being sold for the 2013 event. So I should accept for this purpose that the Code of Conduct applies to the 2013 photographs. 29. As regards the whistleblower, the confidentiality argument is different. It is an obligation owed by an employee. That is a stronger case for the claimants than the 2015 photographs but equally the public interest defence in that respect is also somewhat stronger since the particular photographs which were derived from the whistleblower are specifically said to show inhumane treatment of an animal (I think it is a polar bear). 30. So, overall, on breach of confidence the position is that the parties have an arguable cases on each side, both as a claim and as a defence. Performer's rights www.bailii.org/ew/cases/EWHC/Ch/2016/1370.html 5/13