Novartis Pharmaceuticals UK Ltd & Ors v Stop Huntingdon Animal Cruelty & Ors  EWHC 2716 (QB) (30 October 2009) The High Court of England and Wales refused to grant amendments to an interim injunction that would have prevented animal rights activists from wearing blood spattered clothing, covering their faces with masks, displaying banners and using fireworks at a protest against a pharmaceutical company. The Court explored where to draw the line between free expression and unlawful harassment, observing that this is a matter of fact and degree.
The first defendant in this case was Stop Huntingdon Animal Cruelty (‘SHAC’), an animal rights activist group campaigning for the closure of an animal testing laboratory called Huntingdon Life Sciences (‘HLS’). As part of its campaign against HLS, SHAC targeted associated companies, including the first claimant, Novartis Pharmaceuticals UK Limited.
Prior to this case, an interim injunction had been granted, which imposed restrictions on SHAC's rights to protest against Novartis. That injunction was granted under the Protection against Harassment Act 1997 (UK), which has also been invoked to prevent harassment in other animal rights cases.
In this case, the claimants applied for amendment of the injunction to address concerns about a protest planned for Halloween. Among other things, the claimants sought orders that the protestors must not:
- wear clothing or costumes splattered with blood;
- wear balaclavas, masks or face coverings;
- use banners to accuse Novartis and/or its employees of murdering, torturing or abusing animals.
SHAC had previously engaged in unlawful activities. The other defendants in this case were founding members of SHAC who were serving prison sentences for offences relating to SHAC's campaign.
Justice Sweeney took a cautious approach in deciding this application, noting that:
- the case was still at the interlocutory stage, and
- the claimant had not identified any previous case where such restrictions had been ordered.
Justice Sweeney refused to amend the injunction to prevent the protestors from wearing blood splattered clothing or costumes. He held that such a restriction was not proportionate and was unlikely to be practically enforceable.
He also refused to prevent the protestors from wearing masks, but acknowledged that that issue was less ‘clear cut’. In reaching his decision, he balanced the potential for ghoulish masks to cause distress and conceal the identity of people who intend to harass others against:
- the practical problems that a ban on masks would cause for the Police;
- the risk that such a prohibition would heighten tensions; and
- the rights of people to wear innocuous masks.
He also noted the police's existing statutory powers concerning masks.
Justice Sweeney held that there is no reason to distinguish between shouting words (to which there was no objection) and printing the same words on a banner. For that reason, and because of practical obstacles to enforcement, he refused to grant the amendment relating to banners. He also refused to grant the amendment relating to fireworks, which he found to be redundant in light of existing laws.
In reaching his decision, Sweeney J considered the protestors’ rights to freedom of expression, freedom of peaceful assembly and freedom of association (guaranteed under arts 10 and 11 of the European Convention on Human Rights). He observed that those rights are ‘jealously safeguarded by English law’.
He quoted from the judgment of Sedley LJ in Redmund-Bate v DPP:
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.
Articles 10 and 11 of the European Convention expressly allow for the restriction of freedom of expression, freedom of peaceful assembly and freedom of association by laws which are necessary in a democratic society, in the interests of (among other things) preventing disorder or crime, or protecting the rights of others.
Justice Sweeney held that any such restrictions must be: ‘(i) convincingly established; (ii) justified by compelling reasons; (iii) subject to careful scrutiny; (iv) proportionate and no more than necessary.’
He found that delineating between protest and expression on one hand and harassment on the other hand ‘involves intensive factual enquiry, and difficult questions of degree’.
In this case, the rights to freedom of expression, freedom of assembly and freedom of association needed to be balanced against the right to respect for private and family life, home and correspondence (protected under art 8 of the European Convention). Citing Dyson LJ in Connolly v DPP, Sweeney J held that:
generally speaking members of the public have the right to be protected from material intended to cause them distress or anxiety whether in the privacy of their own homes or in the workplace. It all depends on the circumstances. The more offensive the material the greater the likelihood that such persons have the right to be protected from receiving it. Much is likely to turn on the position of the recipient.
Apart from a minor amendment to the injunction, the claimants' application was rejected.
Relevance to the Victorian Charter
The right to freedom of expression is enshrined in s 15 of the Victorian Charter and the rights freedom of association and freedom of assembly are protected under s 16. Like art 10 of the European Convention, s 15 of the Charter contains an ‘in-built’ limitation on the right to freedom of expression. Under s 15(3), that right may be subject to lawful limitations which are necessary to (among other things) respect the rights of others or protect public order. In addition, s 7(2) of the Charter provides for the reasonable limitation of protected rights by law, where such limits can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom and taking relevant factors into account.
This case may provide useful guidance in appraising whether restrictions on freedom of expression, freedom of association and freedom of assembly are justified, particularly in the context of protests. However, as Sweeney J emphasised, the resolution of such issues ‘involves intensive factual enquiry’. Therefore, each case must be considered in light of its specific circumstances.
The decision is available at http://www.bailii.org/ew/cases/EWHC/QB/2009/2716.html.
Jessica D’Souza is a lawyer with Allens Arthur Robinson