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.