Performance Art crossed the line of protected Freedom of Expression

Samherji HF, a significant Icelandic fishing and fish processing company brought a claim against Oddur Fridriksson (later known as Odee Fridriksson), an Icelandic performance artist and cultural activist, who had created artwork which included a fake Samherji UK website and a fake press release in Samherji HF's name which was distributed via the site, alleging Samherji HF's involvement in the "Fishrot scandal", purportedly apologising for its involvement. Samherji HF sought injunctive relief based on claims of passing off, copyright infringement, and malicious falsehood. Fridriksson argued that his actions amounted to performance artwork and that they were protected by Article 10 of the European Convention on Human Rights (ECHR) (Freedom of Expression). Article 10 is set out below.

The Fishrot Scandal

The scandal arises out of a 2019 Wikileaks release named the "Fishrot Files", after a whistleblower alleged that lucrative fish quotas in Namibia were the subject of bribery and corruption. Numerous prominent politicians and businessmen are accused of running schemes to gain control of quotas, including those held by the state fishing company Fishcor, diverting them to Samherji HF in return for kickbacks. Samherji HF denies all of the allegations of bribery. Fridrikkson's artworks focus on alleged corporate malfeasance and social justice.

Article 10 ECHR (Freedom of Expression)

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.”

Decision

The court held that Fridriksson’s impersonation of Samherji HF crossed the boundary of fair dealing or protected expression. In relation to each of the specific claims brought by Samherji HF, the Court held that:

• Passing Off:
  • Goodwill: Samherji HF demonstrated it had goodwill and reputation in the UK based on its long-standing operations and recognizable brand.
  • Misrepresentation: Fridriksson’s website and press release gave the impression that they were official communications from Samherji HF. This included using:
    1. A domain name (samherji.co.uk) that suggested a connection to Samherji HF.
    2. Samherji HF's logo and branding to give the website an authentic appearance.
  • Damage: The misrepresentation harmed Samherji HF’s reputation, especially since the fake press release falsely admitted to criminal behaviour and unethical practices.
• Copyright Infringement: Fridriksson unlawfully copied Samherji HF’s copyrighted materials to create his website:
  • Logo: He reproduced Samherji HF's distinctive logo on the fake website.
  • Brochure: He linked to and allowed downloads of Samherji HF’s official brochure from the website.
  • These actions were not covered by any legitimate copyright exceptions (e.g., parody, criticism, or fair dealing) because the materials were used to deceive, not for commentary or critique.
• Malicious Falsehood: Fridriksson’s intent to harm Samherji HF was evident. The court found that Fridriksson made false statements about Samherji HF with malicious intent. This included:
• Publishing a fake press release that falsely claimed Samherji HF had admitted to corruption, bribery, and other unethical practices related to the "Fishrot scandal."
• The statements were knowingly false and designed to harm Samherji HF's reputation by attributing to them statements and commitments they had not made.
• The fake press release was distributed to major media outlets (e.g. BBC, Guardian), amplifying the potential damage.

• Deceptive Use of a Domain Name: Fridriksson registered and used the domain samherji.co.uk to host the fake website, which impersonated Samherji HF. This was considered to be:

• A deliberate act of deception to make the website appear as if it belonged to Samherjim HF.
• An "instrument of fraud" intended to mislead users and media outlets.

• Violation of Trade Mark Rights: Although the court did not explicitly grant summary judgment on the trademark claims, the use of the "Samherji" name and logo in a deceptive manner likely infringed Samherji’s trademarks by creating confusion about the origin of the website and press release.

Contrast with the decision in Plesner

This decision contrasts with the 2011 Plesner case (Nadia Plesner Joensen v. Louis Vuitton Malletier SA). In Plesner, the artwork was aimed at raising awareness about the humanitarian crisis in Darfur. Plesner used Louis Vuitton’s trademarked bag as part of a broader critique of consumerism and global indifference, which was symbolic and proportional. The court found this use to be an exercise of artistic freedom, not motivated by malice or an intent to deceive. Fridriksson's fake website and press release were designed to deceive and impersonate Samherji HF and his intent was to shame Samherji HF and attribute statements and commitments to them that they did not make.

Plesner's use of Louis Vuitton's design was incidental and symbolic, to draw attention to broader social issues rather than to suggest affiliation or endorsement by the company whereas in Fridriksson, the use of Samherji HF's logo and brochure was intended to mimic authenticity, misleading viewers into believing that the website and statements were issued by Samherji HF.

In Plesner, the Court also acknowledged that art might "offend, shock, or disturb" it recognized the legitimacy of the artist's intention to highlight a humanitarian crisis. The use of Louis Vuitton’s trademark was proportional and not commercial. In contrast, Fridriksson’s actions were found to be deceptive and an abuse of artistic expression. While his work sought to criticize Samherji HF's alleged conduct, it relied on deliberate misrepresentation to achieve its aim, which the Court considered neither fair nor justified.

Accordingly, although the Court of the Hague upheld Plesner's artistic freedom, ruling that her work did not infringe Louis Vuitton’s intellectual property rights because it served a critical and symbolic purpose without intent to deceive or harm, Master Teverson distinguished that case.

Conclusion

Article 10 of the ECHR supported Plesner's case as the court emphasized the proportionality and non-commercial nature of the use, finding it fell within the scope of artistic freedom and was accordingly protected. In Fridriksson, the court acknowledged the importance of Article 10 but found that the right to freedom of expression did not protect acts of deception or impersonation that harm the rights and reputation of others, as preserved under Article 10(2) and the artist had to take it down.