Animal photos, human rights

Wednesday 27 July 2016

We’re used to the idea of people and organisations seeking injunctions to prevent the publication of damaging stories – celebrity injunction cases are the stock in trade of the courts these days, with claimants who are simultaneously famous and unnamed attempting to keep details of their lives (and loves) out of the public eye.

A recent injunction case involved rather different facts, that of Heythrop Zoological Gardens Ltd and Clubb v Captive Animals Protection Society [2016] EWHC 1370 (Ch).  

Mr Clubb is an animal trainer whose animals were on view at the Zoological Gardens. The Defendant is an organisation concerned with animal welfare which visited the gardens and took photos and videos of the animals performing and the conditions in which they were kept, alleged during the case to be inhumane. The claim was for an immediate injunction preventing the further use of these images and recordings (which by that time had already been made public and had impacted on the Claimants’ animal business) – such injunction to remain in place until the full hearing of the claim.

Legally, the Claimants took something of a shotgun approach to the basis of the claim, seeking to invoke:

• Breach of contract, on the basis that an obligation not to make recordings was incorporated into the ticket purchase.
• Breach of confidence on the basis that the content of the photos and videos was confidential
• Breach of performance rights under the Copyright Designs & Patents Act 1988 on the basis that Mr Clubb was a performer and had not consented for his performance to be recorded.

The court decided that both sides had arguable cases but, as the Claimants were applying for an injunction before trial, it was not necessary to determine which of those cases was the right one.

When it came to deciding whether an injunction was appropriate, the court held that the European Convention on Human Rights (ECHR) came into play – not, sadly, for the direct benefit of the animals, but as, under Article 10, rights of freedom of expression were invoked as there was a public interest argument in favour of exposing the alleged animal cruelty.

Section 12 of the Human Rights Act 1988 (the UK’s incorporation of the ECHR) gives the following test in respect of Article 10:

‘No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.’

On this basis the court’s decision was that the freedom to report claimed by the defendants outweighed the claimants’ demand for an interim injunction to keep the animal photos muzzled until the full hearing of the claim. The court also considered a later full injunction unlikely.