Samherji Hf v Oddur Fridriksson

Summary judgment may be given where the evidence permits a short and decisive determination of law or construction, provided the defendant has no real prospect of success and no compelling reason requires a trial. Freedom of expression, including artistic and political expression, does not protect deliberate deception and impersonation which misrepresents a false statement as that of another. In passing off, goodwill may be protected against loss of control over reputation and against a defendant who supplies an instrument of fraud. Copyright exceptions for criticism, review, quotation, parody, pastiche or reporting current events require the statutory conditions to be met and do not generally justify using a claimant’s branding to authenticate a false communication. Malicious falsehood requires false publication, malice and damage, with section 3 of the Defamation Act 1952 removing the need to prove special damage in specified circumstances.

The claimant, an Icelandic seafood company, applied for summary judgment on claims for passing off, copyright infringement and malicious falsehood arising from the defendant’s registration of a similar domain name and creation of a website purporting to be the claimant’s official United Kingdom website. The website reproduced the claimant’s mark, logo and brochure and distributed a fabricated press release containing apologies and admissions concerning the Fishrot scandal.

The defendant accepted that the work involved deception but relied on artistic freedom of expression under Article 10 of the ECHR, together with copyright fair-dealing defences. He also sought permission to amend his Defence. The central issues were whether the claims and defences could properly be determined summarily, and whether Article 10 or the statutory copyright exceptions gave the defendant a real prospect of defending the claims.

1. Summary judgment. Applying the principles stated in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), the court must not conduct a mini-trial, but should decide a short point of law or construction where it has the necessary evidence and the parties have had an adequate opportunity to address it. The defendant had no real prospect of successfully defending the relevant claims and there was no compelling reason for a trial.
2. Convention rights. Article 10 requires careful balancing against the claimant’s reputation and intellectual property rights. Artistic, political and public-interest expression receives substantial protection, but that protection does not extend to a deliberately deceptive website and press release presented as the claimant’s official communication. The defendant’s artwork had been performed, so there was no justification for retaining or further using the domain name.
3. Passing off. The claimant had a real prospect of establishing goodwill in the United Kingdom through the quality and provenance of its products. The website and press release constituted a misrepresentation, notwithstanding their artistic purpose. Passing off is not confined to passing off the defendant’s goods as those of the claimant. It may include loss of control over goodwill and reputation. The domain name and website were also an instrument of fraud, justifying injunctive relief.
4. Copyright. The use of the logo and brochure was intended to give authenticity to the purported official website, rather than to criticise or review a work, quote from it, or create parody or pastiche. Criticism of the claimant’s conduct was distinct from criticism of a copyright work. The use was not fair dealing for reporting current events and lacked sufficient acknowledgement. Article 10 did not make the statutory defences applicable to a wholly false and misleading press release.
5. Malicious falsehood. The statements that the domain name, press release and website were official claimant communications were false. The defendant knew they were false and deception was central to the purpose of the work. The statements were calculated to cause pecuniary damage within section 3 of the Defamation Act 1952. The claim therefore had no real prospect of being defended.
6. The court made no order on the defendant’s application for permission to amend the Defence. The precise final relief, including the form of injunction and any inquiry as to damages, was reserved for consequential proceedings.

This was a first-instance decision. The judgment records that interim injunctive orders were granted on 19 May 2023 and continued by consent on 25 May 2023. The final form of relief was reserved for consequential proceedings.