Oddur Fridriksson v Samherji HF [2025] EWHC 1873 (Ch)

[2025] EWHC 1873 (Ch)Case No CH-2025-000003IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 22/07/2025
Before
SIR ANTHONY MANN(SITTING AS A JUDGE OF THE HIGH COURT)
Between
ODDUR FRIDRIKSSONDefendant/SAMHERJI HFClaimant/
Jonathan Crystal (instructed by Direct Access) for Defendant/AppellantJonathan Hill (instructed by Wikborg Rein LLP) for Claimant/RespondentHearing Hearing date: 18 th June 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 22 nd July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives and other websites..............................SIR ANTHONY MANN

Sir Anthony Mann :

[1]This is appeal from an order of Master Teverson (sitting in retirement) dated 14th November 2024, made pursuant to a judgment delivered on that date ([2024] EWHC 2892 (Ch)). In it he gave summary judgment in favour of the claimant to restrain the defendant from passing off, infringement of copyright and uttering malicious falsehoods. The acts which underpinned these three claims were the registration of a domain name similar to the claimant’s and creating and operating a website which was found to present itself as a website of the claimant when it was no such thing. The website contained a link to a press release which purported to be one from the claimant, apologising for the scandal referred to in the next paragraph of this judgment, but which was in fact created by the defendant. In an order dated 17th March 2025 Edwin Johnson J ordered that the defendant’s application for permission to appeal from the order below be heard at a hearing with the appeal to follow if permission were granted (a rolled-up hearing). This is the occasion of the hearing of this appeal.[2]The background to this matter is what is said to be a great scandal perpetrated by the claimant (“Samherji”) in relation to its fishing activities. Samherji is an Icelandic company which operates a very substantial fishing business. It is said that in 2019 it emerged that the company had been guilty of bribery and corruption in relation to Namibian officials in order to get fishing quotas in the seas off that country. Apparently it is a great scandal in both those countries and it is the case of the defendant that the people of Iceland are embarrassed by, and very sorry for, what happened. Samherji has issued its own form of apology but the defendant considers that it is not sufficient to reflect what happened.[3]The defendant, who now goes by the name of ODEE (and I shall use that name in this judgment), describes himself as a “multidisciplinary artist working at the nexus of conceptual and performance art” (to quote his counsel’s skeleton argument on this appeal). He feels strongly that the apology issued by Samherji is not sufficient. He has therefore sought to provoke debate and activity by what he describes as a form of “culture jamming”. It has taken the form of registering a form of domain name like the claimant’s - samherji.co.uk - and using that to point to a website created by him which is designed so as to resemble a Samherji website but which, crucially, contains a fulsome purported apology and admission by Samherji. In the course of doing this he is said by Samherji to be guilty of passing off, copyright infringement, malicious falsehood and trade mark infringement. The last of those was not pursued at the summary judgment application below and has since been discontinued. I will not need to consider it as a claim in this judgment, though the presence of the mark on the website is significant for other reasons.

The facts in more detail

[4]I take the following facts from the judgment below, and from a print of the website made available to me.[5]This action centres around the website just described. The website (and the registration of the domain name) were part of an “installation” which ODEE describes as “We’re Sorry”. In Iceland those words were painted in large blue letters on the side of the Reykjavik Museum. They were also used on the front landing page on the website.[6]On 23rd February 2023 he registered the domain name samherji.co.uk but concealed his name as registrant behind privacy measures. On 11th May 2023 the claimant discovered the website, which had gone live and which had been linked to the domain name samherji.co.uk. It purported to be the website of the claimant and the front page displayed the statement “WE’RE SORRY”, and state that for more information reference should be made to a press release with a clickable link which took one to the press release. At the top of the page is Samherji’s word mark and registered sign.[7]The release was headed “Samherji Apologises, Pledges Restitution and Cooperation with the Authorities. Its text contained material amplifying those matters in fulsome terms. I do not need to set it out here; its text appears in the Master’s judgment. Its content does not realistically reflect the attitude and views of Samherji. A previous apology published by Samherji was in a completely different form. The trade marks appear at the top of the press release and at its foot there is a contact email address with the .co.uk domain name. As the Master found, the website was made to look as if it were Samherji’s official website. It did not contain content scraped from the official website, but had material which looked like the sort of thing that Samherji would put in a website. Nothing at all hinted that it might not be an official Samherji website (Samherji’s official website has a .is domain suffix).[8]At the top of each page was a button marked “Brochure”. Clicking that button produced a download of a genuine Samherji brochure describing various products, but minus the last page. This brochure is part of the subject of the copyright claim.[9]At paragraph 13 of his judgment the Master recorded that one media outlet, the Fishing Daily (an outlet for the UK and Irish fishing industry), reported the apology as genuine. Another journalist appreciated it was a fake and emailed the purported Director of Communications (shown on the press release) to ask who sent it out. The reply refused to supply additional commentary.[10]The claimant then set about countering this activity. It requested that it stop, and received a refusal. It found out from Nominet that the registrant of the domain name was ODEE and applied for injunctive relief on 17th May 2023. On 17th May ODEE issued a press release in Iceland (not elsewhere) revealing that the .co.uk website and press release were the work of himself as artist and cultural activist. On the same day there was an article in the Icelandic newspaper Heimildin reporting that the apology and website were part of an artwork, the other part being the words on the museum wall. All were said to be part of ODEE’s BA graduation exhibition running between 18th and 29th May.[11]On 19th May 2023 Adam Johnson J ordered the taking down of the website, steps to procure the non-operability of associated email addresses and the transfer of the domain name to Samherji. On 24th May the domain name was transferred and subsequently the website was taken down. On 25th May the relief was ordered, by consent, to continue until trial or further order.[12]An application for summary judgment was made on 14th March 2024 and this application was ultimately determined by the Master. He made declarations that ODEE had committed passing off, copyright infringement and malicious falsehood, declared that Samherji was the rightful owner of the .co.uk domain name and granted appropriate restraining relief. He also awarded £1 nominal damages; Samherji did not seek more.[13]The defendant appeals the determinations under all three causes of action. I will take those claims in turn.

Passing off

[14]The judge correctly addressed the three elements of a passing off claim - reputation or goodwill acquired by the claimant in its goods or mark, a misrepresentation targeted at the jurisdiction by the defendant leading to confusion or deception, and damage to the claimant or a likelihood of future damage. His formulation was not criticised on this appeal. He acknowledged that the claimant is an Icelandic company, but held that it was legally and factually possible for a business based overseas to acquire goodwill by the supply of its products in the UK through a subsidiary, agent or licensee - paragraph 57, citing Scandecor Development AB v Scandecor Marketing AP [1999] FSR 26 at 42. Again, as a legal proposition that was not challenged on this appeal, but what was challenged was the Master’s finding that the claimant had sufficient goodwill in this country, and that the defendant did not have a realistic chance of establishing the contrary at a trial (paragraph 60). Mr Crystal also challenged the Master’s finding that there was a deceit made in paragraph 61, even though the Master records that the defendant accepted that the registration of the domain name and the use of the website involved a deceit, albeit for a limited period.[15]The Master’s finding of the existence of goodwill in this jurisdiction was based on the evidence of Mr Baldvinsson, the managing director of Seagold Ltd, which is Samherji’s distributor in this country. The evidence was that Samherji is a “vertically integrated seafood company”, operating all aspects of the trawling, processing, transport and sale of fish. In this country its fish is sold under the brand Ice Fresh Seafood. Sales in the UK have been made indirectly through Seagold Ltd, which was a subsidiary of Samherji until 2022, and is now not a subsidiary but is under the control of the son of Samherji’s Chief Executive. Mr Baldvinnson’s evidence was that the customers for Samherji’s fish, which were retailers (large and small) and not consumers, were aware of, and interested in, the Samherji origin of the fish, and some would carry out audits of Samherji’s production plants in Iceland. Even though customers dealt through an intermediary (Seagold Ltd) they were always aware that Samherji’s products were the origin. Paragraph 59 of the judgment explicitly records Mr Baldvinsson’s evidence as being that “it is widely recognised within the trade customers of Seagold Ltd that the Claimant is the source of fish sold”.[16]Mr Crystal challenged the Master’s finding that Samherji had goodwill in this jurisdiction by pointing out that the company has no corporate association with or interest in the “UK entities”. There was no goodwill in the fish (as he put it) once it left the processing plant and arrived in the UK. Furthermore, Samherji and the retailers had no customer/supplier relationship, and once the fish passed outside the group Samherji no longer had goodwill in the fish. No products were sold under the name Samherji (presumably a reference to no fish being sold to end consumers under that name).[17]All these points fail. Mr Crystal’s submissions did not really address the evidence. The reputation was with retailers, not end consumers, so it matters not that end consumers did not understand the origin of the fish. Goodwill can exist notwithstanding that the ultimate contractual relationship was with another entity (Seagold Ltd). That entity does not have to be a subsidiary of the goodwill proprietor, though that factor would no doubt help, and it existed until 2022. Even after that time there has obviously been a close relationship by virtue of the control of the son, and for my part I note that Seagold Ltd is presented as part of the Samherji structure in its brochure, on the last page (the page that was not reproduced by the defendant as referred to above).[18]The Master did not indulge in a detailed consideration of whether there was a misrepresentation by the defendant, doubtless because of the recorded acceptance by ODEE that there was an element of deceit and that “for the performance of the artwork to be effective, there needed to be an element of deception.” However, despite that, Mr Crystal submitted that there was no deception proved, and no likelihood of deception.[19]This submission is unsustainable (and it was not actually the subject of a ground of appeal). The whole website was a huge misrepresentation as to its proprietor and provenance. It was carefully mocked up so as to appear to be Samherji’s, including the domain name which pointed to it. Content was carefully created to make it look genuine. The brochure which arrived if one clicked the link was actually Samherji’s (minus the last page). There is no question but that the viewer was supposed to understand the website, and thus the press release, were Samherji’s. That was what was intended to give authority to the press release.[20]By the same token, it was intended to deceive, and would be likely to deceive at least some of its audience. There was actual evidence of misleading of one publication (Fishing Daily), and it is likely that there were others who were misled even if not all were. That was, after all, the purpose of the carefully created exercise. The absence of extensive evidence of actual deceit may well be because the website was not up for long, but in any event deceit is likely. The Master did not make a finding about this but the conclusion that there was a likelihood of deceit flows from his recording of the defendant’s acceptance of deceit.[21]Next under this head, Mr Crystal sought to criticise a finding by the judge that the domain name was an instrument of fraud. The grounds of appeal refer to a finding that the “Defendant’s artwork” was an instrument of fraud, but Mr Crystal, more correctly, confined his submission to the domain name. The Master found (paragraph 63) that the court would intervene by way of an injunction in cases where a defendant has equipped himself or intends to equip another with an instrument of fraud, an instrument of fraud being a domain name that is set up in order to mislead or deceive or involves an abuse of the system of the registration of domain names. The reference to the domain name, and the prior reference to British Telecommunications plc v One in a Million Ltd [1999] 1 WLR 903 indicates that this determination was considered by the Master to be a reason for ordering the transfer of the .co.uk domain name to Samherji. Mr Crystal said that the domain name was not acquired with a view to commercial exploitation, which was a core requirement of cybersquatting at which the BT case was aimed. Samherji had no right to stop the purchase of a domain name; there had to be more than a purchase for action by the court to be justified, and there was no such thing here. The domain name was a window into the website, and the website was a work of art so the domain name was not a window into a fraud.[22]Mr Crystal’s submissions rather miss the point. Insofar as his window analogy is apposite as a metaphor, the domain name was indeed a window into a fraud, because the website was a work of deception - see above. It does indeed seem to have been the case that ODEE did not acquire the .co.uk domain as a cybersquatter, but he still acquired it as part of a plan to deceive. The domain name can entirely accurately be described as an instrument of fraud in everyday terms. It also falls within the evil dealt with in the BT case.[23]In that case Aldous LJ recognised that “for many years the courts have granted injunctions to prevent the creation and disposal of instruments of fraud.” (p914D). He considered whether that principle could be applied to trade mark infringement and passing off. He concluded:
“In my view there can be discerned from the cases a jurisdiction to grant injunctive relief where a defendant is equipped with or is intending to equip another with an instrument of fraud. Whether any name is an instrument of fraud will depend upon all the circumstances. A name which will, by reason of its similarity to the name of another, inherently lead to passing off is such an instrument. If it would not inherently lead to passing off, it does not follow that it is not an instrument of fraud. The court should consider the similarity of the names, the intention of the defendant, the type of trade and all the surrounding circumstances. If it be the intention of the defendant to appropriate the goodwill of another or enable others to do so, I can see no reason why the court should not infer that it will happen, even if there is a possibility that such an appropriation would not take place. If, taking all the circumstances into account the court should conclude that the name was produced to enable passing off, is adapted to be used for passing off and, if used, is likely to be fraudulently used, an injunction will be appropriate.”
[24]The Master was therefore right to consider the applicability of that principle to the passing off claim in this case. In the BT case part of the injunctive relief ordered by the first instance judge was a transfer of the offending domain name. That had already been done pursuant to the order of Adam Johnson J by the time of the hearing before the Master. That no doubt explains the form of order of Master Teverson when he declared that Samherji was the rightful owner of the domain name - that was the appropriate order when that which ought to have been done was already done.[25]Master Teverson found that “The use of the Domain Name and the Website in the Claimant’s name was a means of damaging the Claimant’s reputation”. That is sufficient to invoke Aldous LJ’s principle. It does not matter that the defendant did not intend to indulge in the cybersquatting activities that were the subject of the BT case. The principle can apply to other forms of wrongful objective within the principles of passing off, such as that found against the defendant by the Master. No criticism can be made of the application of the principle on the facts as the Master found them to be.[26]The Master concluded (in paragraph 64) that ODEE had no real prospect of success in resisting a final injunction in the form granted by Adam Johnson J, by which he meant that there was no defence to the passing off claim. That conclusion, as an evaluative one, was one which he was entitled to reach, and indeed in my view was the only reasonable conclusion that he could have reached and I would agree with it (though that is not necessary for the appeal to succeed). Thus far the passing off claim succeeds, therefore, but subject to an umbrella point taken by the defendant about his right to freedom of expression which is said to apply, perhaps in slightly different ways, to all the claims on which the Master found against him. I deal with this point separately below.

Copyright

[27]The copyright works relied on in this case are the Samherji logo which appeared at the top of each page of the defendant’s website, and the brochure which appeared on clicking the link referred to above. At paragraph 65 the Master held that it was clear that the defendant had infringed copyright by copying and there is no challenge to that particular finding on this appeal. The Master went on to deal with a challenge to ownership (by way of putting Samherji to proof of ownership) and held that Samherji did indeed own the copyright. He shortly rejected a defence mounted under the “fair dealing” provisions of the Copyright Designs and Patent Act 1988 (“the 1988 Act”). The defendant had relied on the work as being a fair dealing for the purposes of criticism, review, caricature, parody or pastiche, and the Master briefly rejected all of them, having briefly considered the factors suggested by authority as being a useful test for parody, saying that the activities of the defendant could not fall within any of them. Having done that he said that in any event what the defendant did could not be “fair dealing”: “To create a website as a vehicle through which to put out a fake press release, containing admissions and commitments which the Claimant has not made cannot with any realistic prospect of success be relied upon as a fair dealing.” (paragraph 75) Then he went on to take into account free speech considerations in this context, and held: “77. I prefer to proceed instead on the basis that the court must have regard to the importance of freedom of expression and consider the impact of the public interest on the test of fair dealing. In the present case the Defendant put statements into the mouth of the Claimant which were factually incorrect in the sense that they were not statements made by the Claimant and were statements, apologies and commitments which the Defendant wanted it to appear that the Claimant was adopting. The fake press release, even if viewed in the context of a work of performance art, contained admissions of a very serious nature and were presented as admissions made by the Claimant and as commitments to work with Restitution. This ploy or hoax was not in accordance with the ethics of journalism whose principles must apply to others who engage in public debate: Steel & Morris v United Kingdom [2005] E.M.L.R. 15 at 346-7.[28]On this appeal Mr Crystal did not seek to challenge the findings on the various permitted types of fair dealing other than parody and the free speech and/or artistic considerations that he said ought to be considered in this context and which provided an arguable defence. At one point in his submissions Mr Crystal intimated that he might want to challenge the ownership finding despite its not being the subject of the grounds of appeal, but that challenge was in fact then not made.[29]I can therefore turn to consider those aspects of this matter that are relied on, focusing on parody first. Sections 30 and 30A of the 1988 Act, so far as material, provide as follows:
“30(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise) and provided that the work has been made available to the public. (2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that … it is accompanied by a sufficient acknowledgement” … 30A (1) Fair dealing with a work for the purposes of caricature, parody, or pastiche does not infringe copyright in the work”
[30]The question of parody in this context was considered by the CJEU in Deckmyn v Vandersteen [2014] Bus LR 1368. The Court held that the concept was an autonomous one (paragraph 17) and in paragraph 33 it set out some parameters of parody:
“ Consequently, the answer to the second and third questions is that article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery.”
[31]This was the test considered, in terms, by the Master, and there can be (and is) no criticism of that. However, Mr Crystal complains that the Master did not determine whether the context of the reproduction of the copyright works was a parody or not. That is not a fair criticism. The Master said, in terms that it was not a parody. He said: “Likewise, this is clearly not a case of dealing with a work for the purposes of caricature, parody or pastiche.” (paragraph 73) That is a clear decision on the point. What could be said, however, is that the Master did not give reasons for that conclusion - he did not say why not, other than to say (by inference) that the case did not comply with the Deckmyn factors.[32]Having said that, a straightforward consideration of the matter reveals that the Master’s decision is entirely justifiable and justified. Looking narrowly at the copyright material itself (the logo and the brochure), they are effectively reproduced in their totality (the omission of the last page of the brochure is immaterial in this context). They are not just evoked; they are completely reproduced. There is no noticeable difference at all. That element of the Deckmyn factors is therefore not fulfilled. But Mr Crystal’s case is essentially that the website itself is a parody, so the use of the copyright material is still “for the purpose” of parody. However, that does not work either. The website as a whole does not fit within the Deckmyn factors. It does not reproduce an actual website, but it goes out of its way to look exactly like a Samherji website in style and content, and the brochure actually comes from a genuine Samherji website. There is nothing within it which introduces the “noticeable difference” which is required for parody. ODEE’s concession of deceit before the Master (and which is obviously inherent in the website and, so far as relevant, his subjective intentions) is consistent with that if it does not prove it. Mr Crystal submitted that a viewer would realise the website was not Samherji’s and would therefore be a parody because Samherji’s previous denial of responsibility in the Fishrot scandal would be known. I do not agree. It is quite clear that the website was intended to be treated as genuine and the press release was presented as a genuine recantation of the denial, and the deployment of the copyright material was intended to support that. There was no element of mockery of anyone, or of humour. All that is sufficiently apparent from the material before the Master and from his other findings. Nothing new is likely to be added by a trial. The Master’s decision was obviously correct.[33]Use for the purpose of parody still has to be “fair dealing”, and although his finding of non-parody was sufficient to deal with the parody point he still dealt with fair dealing itself in paragraph 75 of his judgment. He did not accept that the means used by the defendant were fair dealing and he also dealt with a freedom of expression (Article 10) point in that context. “To create a website as a vehicle through which to put out a fake press release, containing admissions and commitments which the Claimant has not made cannot with any realistic prospect of success be relied upon as a fair dealing. I accept that the defence should be construed liberally to give effect to Article 10 but I do not accept that it is realistic to invoke Article 10 where a completely false and misleading press release has been put out. It was open to the Defendant to criticise the Claimant publicly. The installation at the Museum of Art in Reykjavik although plainly seeking to shame the Claimant did not seek to pass itself off as an official statement or website of the Claimant. In creating a website that appeared to be the official UK website of the Claimant and in linking to it and sending out the fake press release, the Defendant crossed the boundary between fair and unfair dealing.” He reached this conclusion in considering a possible defence under section 30(2) of the 1988 Act (reporting current events) and that defence was not relied on in this appeal, but his remarks are sufficiently general to apply to other fair dealing defences. His conclusion was one that he was entitled to reach (if not the only realistically possible conclusion) and so far as he was impliedly deciding that a trial would add nothing, that was again a decision he was entitled to reach (and it was also in my view correct).[34]Nor does it affect these conclusions that the “work” was that of an Icelandic art student and was a legitimate creative and expressive work rather than a commercial exploitation, contrary to Mr Crystal’s submissions. Commercial exploitation is not a requirement of the tort of copyright infringement, so its absence is not significant.[35]There is therefore nothing in this limb of the defence or in the appeal on it. Again, I deal with Article 10 freedom of expression points below.

Malicious falsehood

[36]This was the third claim made by Samherji. As Mr Crystal accepted, in terms of remedy it adds nothing if the other two claims (passing off and copyright infringement) succeed. The Master dealt with it only briefly (as he acknowledged he was doing), and some elements were not the subject of full argument before me. In the circumstances I too will deal with it only briefly. The Master set out the requirements as being:(i) A falsehood published about or concerning the claimant;(ii) malice, and(iii) damage.[37]His conclusions were briefly expressed in paragraph 85:
“85. I think the same logic applies to this claim as to the elements of misrepresentation in the passing off claim. The Domain Name and the Website were instruments of fraud in the sense that they were set up with the deliberate intention of deception and in the knowledge that their content was false. The falsehood was known to the Defendant and was central to his purpose. This was calculated to cause pecuniary damage to the Claimant,”
[38]The reference to “calculated to cause pecuniary damage” is a reference to section 3 of the Defamation Act 1952, which he had previously set out (and which I set out below). There was no further elaboration of, or explanation for, those conclusions, save that one can properly infer he was accepting the submissions of the claimant recorded in paragraph 82:
“82 … The Claimant submits that the Defendant knew full well that they were false and that was his very intention. The Claimant submits the Defendant was motivated by the improper purpose of putting words into the mouth of the Claimant. The Claimant relies on the Defendant being quoted by Heimildin in its article published on 17 May 2023 as saying that the artwork is ““fuck you”
Samherji and I’m sorry Namibia”[39]It is also relevant to note that he had already made relevant findings of mis-statement in the publication of the website. He concluded that the defendant had no real prospect of defending this claim at trial.[40]The three elements of malicious falsehood set out by the Master are common ground between the parties. Section 3 of the Defamation Act 1952 qualifies the requirement of damage:
“3(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage- (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or (b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”
(emphasis provided)[41]The Grounds of Appeal take two points:(a) The “Statements” relied on were not “false words” on which a claim for malicious falsehood could be maintained and the defendant had real prospects of establishing that point at a trial.(b) The defendant had real prospects of establishing that the statements were not calculated to cause pecuniary damage to Samherji’s business (see section 3(1)(b) and the words emphasised).[42]The first point is easily dealt with. The statements relied on in this case were the false statements that the words were emanating from Samherji (they were not) and that Samherji wished to apologise in terms that it did not in fact wish to adopt. Those are implied statements, but implied statements suffice. See Clerk & Lindsell on Torts 24th Edn at paragraph 22-11:
“As in deceit, the statement may be oral, written, implied or emanate from conduct.”
[43]As Mr Hill pointed out, it is also implicit in Khodaparast v Shad [2000] 1 WLR 618 that statements may for these purposes be implied (implied statements arising out of fake adverts suggesting falsely that the claimant provided telephone sex services), and that decision was cited without disapproval by the Supreme Court in George v Cannell [2024] UKSC 19 at paragraph 115.[44]There is therefore nothing in this Ground.[45]Nor is there anything in the second of those Grounds. What is necessary for the purposes of section 3(1)(b) is an objective likelihood of loss based on facts known or which ought to have been known to the claimant: “82 Thus, I agree with Lord Hamblen and Lord Burrows JJSC that the appropriate test in determining whether the words complained of ‘are calculated to cause pecuniary damage’ to the claimant is to ask whether, on the facts known or which should reasonably have been known to the defendant at the time of publication, it was objectively likely that the words published would cause financial loss. I also agree that, subject to this constraint, potentially relevant matters include prior publications, other statements made in the same publication, and steps which the publishee would be likely to take in response to the publication.” (per Lord Leggatt in George v Cannell at paragraph 82.)[46]Mr Crystal’s main point on this was similar to that made in relation to goodwill in passing off. He said the claimant had no direct trading presence in this jurisdiction in respect of which loss could be suffered. That proposition fails for the same reason that it fails in relation to passing off. Samherji had very real business interests in this jurisdiction which were likely to (calculated to) suffer if the statements were taken seriously in the commercial world of fish wholesaling and retailing. In any event, the Master found that not only were the defendant’s acts likely to cause damage, but actual damage was suffered, even though prompt action by Samherji limited the scope of that damage. In paragraph 64 of his judgment he said:
“64. Where a Website has been set up and operated to make it appear that it is the official website of a trading company, when it is not, the court will infer that damage to that company’s goodwill is likely to have occurred. In the present case, the granting by the court of an interim injunction is likely to have limited the amount of damage suffered by the Claimant. The Claimant is likely to have suffered some damage to its goodwill and reputation in the UK and has suffered damage in the form of having to take action to correct the misrepresentation caused by the Claimant. Although the Website only operated for a short period as a result of the Claimant being granted an interim injunction on 19 May 2023, the operation of the Website until then was outside the control of the Claimant. In my view, the Defendant in view of these two types of passing off has no real prospect of success in opposing at trial a final injunction in the terms of paragraph 1 and 2 of the order of Adam Johnson J. Nor in my view can it realistically be argued that the use of the Domain Name and Website caused no damage to the reputation and goodwill of the Claimant.”
[47]That disposes of Mr Crystal’s argument under this head. I agree with the Master that the defendant has no real prospect of establishing that the claimant suffered no damage or that his acts were not calculated to cause damage.[48]Mr Crystal sought to make some short submissions about malice, but there was no Ground of Appeal in relation to malice and he did not really develop his points. I did not receive any real arguments on the requirement of malice. In the circumstances I say no more about it.[49]It follows that, subject to the over-arching point to which I turn next, the appeal in relation to malicious falsehood fails.

Freedom of expression

[50]Mr Crystal had one overarching point which touched on all the heads of claim. In the words of Grounds 1 and 3 of the Grounds of Appeal:
“1. In granting summary judgment on the Claimant’s claims for passing off, copyright infringement and malicious falsehood, the Master failed: 1.1. to have particular regard to the comparative importance of the Convention right to freedom of expression set out in s12 of the HRA 1998 such that the Defendant's artwork was entitled to freedom of expression protection; 1.2 to have particular regard to the public interest in the Defendant's artwork being published such that the Claimant's intellectual property and other rights should be prevented or restricted. The Master should have concluded that the Defendant had real prospects of succeeding in establishing that publication of his artwork was protected by his right to freedom of expression and that its publication was in the public interest. …. 3. The Claimant’s claims were unsuitable for summary determination. They raised important issues relating to the balance between artists’ rights to freedom of expression and a corporation’s intellectual property rights. Those issues required investigation at a trial. The Master could not justly conclude on the material before him that the Claimant’s intellectual property rights outweighed the Defendant’s right to freedom of expression and the public interest such that the Defendant had no real prospect of succeeding at trial.”
[51]In his oral submissions Mr Crystal sought to reinforce that ground by saying that there was no limit to what is recognised as freedom of expression, and that it included what the defendant did here. Art has a fundamental purpose which should not be fettered and large corporations should not be allowed to have recourse to intellectual property rights to stifle art. The court should not lend itself to that exercise, or at least not without a trial which investigates the conflict thoroughly in terms of evidence and law.[52]His skeleton argument developed this a little. ODEE’s “work” was said to be “a performative act of culture jamming, a detournement of corporate communication used to convey ethical accountability … conceptual art can do more than exist in galleries - it can detonate conversations in boardrooms, newsrooms, and living rooms. His goal is to continue creating works that blur art and reality, disrupt complacency, and affirm the idea that creative acts, however playful or subversive, can speak to pressing social truths.” The court should allow a debate about the conflicts between these ideas and the IP rights of the claimant at a trial.[53]The Master dealt with these arguments by considering statutory and case law. I was not taken to the law in as much detail as that set out in the judgment below. The Master considered Article 10 of the European Convention on Human Rights (free speech), including paragraph 2 which preserves the rights of others. He also referred to Article 1 of the First Protocol which provides for the protection of property rights. Then he referred to the need for balancing competing interests:
“44. In relation to Article 12(4), it has been held that the court cannot have “particular regard” to Article 10 without having regard to the qualifications in Article 10(2): Douglas v Hello! Ltd (No.1) [2001] Q.B. 967 per Sedley LJ at paragraph 133. The sub-section does not of itself give the Article 10 right to freedom of expression pre-eminence over other competing rights. Where the value of two rights are in conflict it is necessary for the court to look closely at the facts of individual cases and to focus intensely on their comparative importance. This includes consideration of the justification for interfering with or restricting each right: Ashdown v Telegraph Group Ltd [2002] Ch. 149 at paragraph 45; A Local Authority v PD [2005] EWHC 1832 (Fam) at paragraph 24.”
[54]He acknowledged that European Court of Human Rights jurisprudence (to which he referred) “state[s] clearly that political expression, including expression on matters of public interest and concern, require a high level of protection under Article 10: Steel & Morris v United Kingdom [2005] E.M.L.R. 15 at paragraph 88”; and he dealt with Nadia Plesner Joensen v Louis Vuitton Malletier SA [2011] E.C.D.R 14, on which the defendant relied, and contrasted that with the case before him:
“48. In contrast to the Plesner case, the Defendant’s performance art-work involved, albeit for a limited period, a form of deception and impersonation and misinformation. The Defendant attempted to make it appear that the Claimant had made the statements and given the apology in the press release when it had not.”
He then concluded:
“52. In my view, in balancing the convention rights, the Defendant relying on Article 10 alone has no real prospect of opposing the transfer of the Domain Name to the Claimant. The Domain Name and the Website were created as vehicles for the fake press release. The Defendant’s art work has been performed and there can be no justification for allowing the Domain Name to be retained or further used by the Defendant. 53. Similarly, in my view in balancing the convention rights, the Defendant relying on Article 10 alone has no real prospect at trial in successfully opposing a final injunction being granted in the form of, or substantially in the form of paragraph 2 of the order of Adam Johnson J. as continued until trial or further order by the order of Sir Anthony Mann dated 25 May 2023. The making of a final order in that form will prevent the Defendant from repeating or making further use of the Claimant’s Mark and Logo. It will prevent the Defendant from further misrepresenting whether by the use of the sign “Samherji” or by any other means that the Website is a website operated or controlled by the Claimant when it is not.”
[55]The Master’s determination on the freedom of expression point occurred before he reached his conclusions on the three IP claims to which he then turned. He did not expressly apply the balancing act which he favoured to each of those claims in turn, but it is clear from his judgment that his balancing conclusions in paragraphs 52 and 53 were intended to apply to each of them. In my view the Master carried out all the balancing exercises that needed to be carried out. He was fully aware of the facts and of the arguments to be weighed in the balance, though he may not have had the almost philosophical level of arguments about “art” that I received. He arrived at a result which he was entitled to arrive at and it is not apparent what further useful investigation could take place at a trial. Applying the labels “artistic, satiric, performance-based protest” to ODEE’s activities (as per Mr Crystal’s skeleton argument) do not really advance the argument. Such balancing exercises as the Master carried out are not susceptible to appeal unless they are irrational, fail to take into account relevant matters or take into account irrelevant matters. Mr Crystal’s arguments did not establish any of those. Nor did he establish that there was anything else relevant which might be illuminated by a trial. Accordingly, freedom of expression arguments do not get ODEE any further on this appeal.

Conclusion

[56]It follows, therefore, that the Master’s decision was justifiable and justified. Having heard all the argument I consider that this appeal had no real prospects of success and I would refuse permission to appeal.