Full case report
Hegglin v Persons Unknown
Reference  EWHC 2808 (QB)
Court High Court (Queen's Bench Division)
Judge Bean J
Date of Judgment 31 Jul 2014
Libel – Data Protection Act 1998 – Norwich Pharmacal order – interim injunction – permission for service out of the jurisdiction
The Claimant (C) was a businessman and investor resident in Hong Kong. He had previously lived in London, and continued to have a house and carry out substantial business in the city. A company of which he was a director was preparing to list on the London stock exchange.
Anonymous posts of highly defamatory and abusive allegations had been posted on a number of websites. The First Defendant (D1) was described as Persons Unknown (Being the person(s) responsible for publication of Schedule A to the Order). The Second Defendant (D2) was Google Inc, and the claim was issued against it for an injunction pursuant to sections 10 and/or 14 of the Data Protection Act 1998 and the European Directive 95/46/EC: “to prevent the processing of personal data of the claimant which is inaccurate and/or which is causing or is likely to cause him substantial damage or substantial distress.” There was also a claim for a Norwich Pharmacal (“NP”) order requiring D2 to disclose information necessary for C to identify D1.
Permission was required to serve proceedings on D2 out of the jurisdiction. C relied on 3 of the jurisdictional gateways set out at paragraph 3.1 of Practice Direction 6B. He relied on: 3.1(2), that the claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction; 3.1(9), which stipulates that a claim must be made in tort where damage was sustained within the jurisdiction or the damage sustained resulted from an act committed within the jurisdiction; and 3.1(3)(b), which stipulates that the claimant must wish to serve the claim form on another person who is a necessary or proper party to the claim. This application was made along with applications for an interim injunction and the NP order.
C applied for more extensive relief two days before the hearing, requiring Google to take all reasonable and proportionate technical steps as might be necessary in order to ensure that such material does not appear as snippets in Google search results. This was not allowed at such short notice, and was reserved for determination at trial.
(1) Should a NP order be made; and
(2) Should C be given permission to serve out of the jurisdiction?
Making the NP order, and granting C permission to serve the claim form out of the jurisdiction on D2.
(1) There was little dispute about the NP order, and the Judge made it accordingly.
(2) The well established principles applicable in the exercise of a court’s discretion whether to grant service out are that the claimant must satisfy the court that: firstly, there is a serious issue to be tried; second, there is a good arguable case that the claim falls within one or more of the classes of case for which leave for service out must be given set out in paragraph 3.1 of Practice Direction 6B; and, third, that in all the circumstances England is clearly or distinctly the appropriate forum for the trial of the dispute.
On the gateway provided by PD 6B 3.1(2), D2’s submission that an injunction was not necessary to prevent the repeat of the conduct as a matter of practical reality was not accepted. The question of whether D2 was doing all it could to prevent republication was for trial. England was in all the circumstances clearly or distinctly the appropriate forum for a trial of the dispute.
On the gateway provided by PD 6B 3.1(9), C had business interests as well as a home within the jurisdiction and the defamatory material risked damaging his reputation here. As for D2, the claim came in the wake of ECJ’s decision in the Costeja Gonzalez (“Google Spain”) case (C-131/12) 3 WLR 659). This established D2’s status as a data controller for the purposes of the European Directive in relation to search. J accepted C’s submission that there was a good arguable case that D2 is under an obligation to comply with the DPA 1998 when processing C’s personal data both when hosting a website on which such data appears or in the when operating a search engine on which it is processed.
On the gateway provided by PD 6B 3.1(3), there was a lack of evidence as to whether D1 was connected to this jurisdiction. D2 was willing to comply with an indication that a NP order may be justified without prejudice to their general arguments about service out. If leave to serve out was given, as it was, then no separate issue arose in respect of the NP order.
In the wake of the Google Spain judgment, the outcome of this application emphasises its wide-ranging implications for the search giant. The ECJ held that Google Spain’s sale of advertising was inextricably linked to search results and that therefore the data processing that it carried out took place “in the context of the activities of an establishment in the territory of a Member State”. This brought it within the scope of the EU’s Data Protection Directive.
While Google responded to Google Spain by establishing a process for individuals to apply to it for the removal of search results, this judgment recognises that, arguably, the logic of that decision extends further. Permission for the service of proceedings on Google under the DPA 1998, relying on Google Spain as authority for the company’s status as a data controller in England and Wales could point the way to far more extensive liabilities for the company in this jurisdiction under the 1998 Act.
Olswang LLP for C; Pinsent Masons LLP for D
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