Soriano v Forensic News & ors
Reference:  EWHC 56 (QB)
Court: High Court (Media & Communications List)
Judge: Jay J
Date of judgment: 15 Jan 2021
Summary: Libel - section 9 Defamation Act 2013 - jurisdiction - service-out - forum conveniens - malicious falsehood - GDPR - data protection - establishment - extra-territoriality - service gateways - centre of interests
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Greg Callus (Claimant)
Ben Hamer (Claimant)
Instructing Solicitors: Rechtstaffen Law for the Claimant; Gibson Dunn for the First to Fifth Defendants
A claimant applied ex parte for permission to serve-out claims in (1) data protection; (2) malicious falsehood (against D1 & D2 only); (3) libel; (4) misuse of private information (“MPI”); and (5) harassment. All 6 defendants were domiciled in various states or commonwealths of the USA. Nicklin J ordered of his own motion that the application should be served-out, so that the application for permission to serve-out the claim form could be contested.
D1-D5 filed evidence and appeared at the 2-day hearing. D6 did not attend and was not represented.
(1) Did the Claimant have a ‘good arguable case’ that each of the claims satisfied a ‘gateway’ in CPR Practice Direction 6B? (the Gateway Limb)
(2) Did each of the claims have a ‘real prospect of success’? (the Merits Limb)
(3) In the case of the non-libel claims, was the English Court forum conveniens? (the Forum Conveniens Limb)?
(4) In the case of the libel claims, did the Claimant satisfy the test in s.9 Defamation Act 2013?
(1) Yes – the Data Protection claim satisfied the para 3.20 ‘statutory’ gateway on the basis of Article 79(2) GDPR because England & Wales was the place of the Claimant’s ‘habitual; the MPI claim satisfied the special gateway in para 3.21; and the remaining claims all satisfied the tort gateway as all damage was caused in this jurisdiction.
(2) Only the libel claim and the MPI claim (only in relation to the photographs) had a real prospect of success. The remaining claims failed the merits limb on: (a) the data protection claim failed on the extra-territorial application of GDPR; (b) the malicious falsehood claim failed on malice & s.3 Defamation Act 1952; (c) the harassment claim failed on the test of ‘abuse of press freedom’, following Sube v News Group Newspapers  EWHC 1125 (QB).
(3) Yes – the English Court was forum conveniens for the non-defamation claims, although had the MPI claim over the photographs been the only element to survive the Merits Limb, the Court would not have exercised its discretion to grant permission.
(4) Yes – the Claimant (who was domiciled in the UK, and was a British citizen) satisfied s.9 Defamation Act 2013.
A case very much decided on its facts, but the first time that a claimant has successfully surpassed the s.9 Defamation Act 2013 test that “England & Wales is clearly the most appropriate place to bring the claim”. This is less surprising given that the Claimant was habitually-resident/domiciled in London since 2003 and has been a British citizen since 2009, but while aiming to prevent ‘libel tourism’, Parliament has not exempted British claimants from the strictures of s.9.
Now that the UK has left the European Union and the Lugano Convention, unless it is re-admitted to the Lugano Convention in due course, s.9 has been amended under Brexit regulations and will henceforth apply to all claims against all foreign defendants (not just those domiciled outside Brussels/Lugano).
The case is also interesting for its discussion of the territorial application of GDPR to data controllers who are not domiciled in the EU/EEA, and the extent to which subscriptions to a news website will satisfy the test for establishment as a “any real and effective activity – even a minimal one – exercised through stable arrangements”.