Activism: Can IP rights limit your freedom of expression?

There are often legal considerations and risks when engaging in political activism, but one that may not have immediately come to mind is the risk of infringing intellectual property (IP) rights.

Judgment was handed down by the High Court in November 2024 in Samherji HF v Fridriksson [2024] EWHC 2892 (Ch), a case which addressed the intersection between the defendant’s freedom of expression when making social criticism and the IP rights of the claimant.

UK intellectual property rights case

Back in 2023, Mr Fridriksson, an Icelandic self-proclaimed ‘cultural activist’, registered the website domain of ‘samherji.co.uk’. Mr Fridriksson used the claimant’s logo and mark to give the impression that the website was the official UK site of Samherji, an Icelandic seafood company, who have a substantial reputation in the UK. The defendant then posted a link on the fake website to a hoax press release of an apology from the claimant for its alleged involvement in the recent ‘Fishrot’ corruption scandal.

Copyright infringement or freedom of expression?

Samherji obtained an interim injunction against Mr Fridriksson in May 2023 before applying for summary judgment against him in March 2024 for its claims of passing off, copyright infringement and malicious falsehood.

Mr Fridriksson tried to argue against summary judgment on the basis that he had a right to freedom of expression under the Human Rights Act 1998. However, the Judge readily pointed out that the exercise of that right may be subject to legal restrictions to protect the rights of others. Of particular concern to the Judge was that, in this case, the artist had involved “a form of deception and impersonation and misinformation.” He distinguished it from the 2011 case between an artist, Nadia Plesner Joensen, and Louis Vuitton which allowed the artist to infringe Vuitton’s IP rights to make a “society-critical message”. There is therefore a careful balance to be struck between deception and commentary.

The Judge also took issue with Mr Fridriksson attempting to argue that his use of the claimant’s copyright came under the fair dealing defence to infringement of parody and pastiche. Notably, rather than exploiting the protected work in order to criticise or review the said work itself, Mr Fridriksson used the protected work to criticise Samherji’s own conduct and to give authenticity to his fake website. There was no attempt to alter the protected work to create an expression of mockery or humour.

With regards to the claim of malicious falsehood, the Judge was satisfied that the fake website was an “instrument of fraud”, set up deliberately to deceive.

Were the intellectual property assets used correctly?

The claimant was ultimately successful in its application for summary judgment, and the considerations of the Judge in this case serve as a reminder of the limits to freedom of expression and parody in a time where it may be tempting for activists or artists to use the readily available IP assets of large corporations to highlight apparent social injustices.