Soriano v Forensic News LLC & ors

C is a British businessman, naturalised in 2009 with joint Israeli citizenship, who has resided in the UK since 2003. He is domiciled in the UK for tax purposes, and his family and business interests are largely based in this jurisdiction. It is his ‘centre of interests’.

D1 is a company founded by D2 that owns a website. Ds3-5 also write for D1’s website.

Ds1-3 are domiciled in the State of California; D4 is domiciled in the State of New York; D5 is domiciled in the Commonwealth of Pennsylvania.

In respect of 8 publications on D1’s website (and associated social media publications), C sued Ds1-5 for libel, misuse of private information (“MPI”), breach of data protection, and harassment. He also sued Ds1-2 for malicious falsehood. 

C’s ex parte application to serve-out was converted to on-notice by Nicklin J, and then heard by Jay J. Jay J gave permission in respect of the libel claims (the first such grant of permission under s.9 Defamation Act 2013), and the MPI claim in respect of photographs only, but refused permission as to all other claims.

Ds1-5 appealed the grant of permission to serve-out, saying that Jay J had erred (1) in holding that while the legal burden of satisfying s.9 fell on claimants, there was an evidential burden on defendants to identify an alternative candidate jurisdiction and demonstrate it was available; and (2) having criticised C’s evidence as “far from forthcoming about his business interests” there was no safe basis for the conclusion that C satisfied s.9.

C filed a Respondent’s Notice that (1) the judge had erred in holding that the standard of proof was ‘balance of probabilities’ rather than ‘a good arguable case’ (holding along the way that s.9 was not merely a modification of forum conveniens at common law and as such a facet of personal jurisdiction, but instead, like s.10 of the 2013 Act, a brand new subject-matter jurisdictional provision); and (2) the judge had erred in holding that expert evidence on foreign law was not necessary in establishing the availability and appropriateness of an alternative candidate jurisdiction.

C also filed a cross-appeal against the refusal of permission to serve-out his claims in:

• malicious falsehood (relying in the appeal only on the Loutchansky species of malice, and an appeal against Jay J’s approach to s.3 Defamation Act 1952); and
• data protection (the Gateway limb having been satisfied by Article 79(2) GDPR, and the Forum limb also satisfied, the only dispute was whether C had an arguable case – capable of resisting summary judgment – as to extra-territorial applicability of GDPR under Article 3 GDPR).

1. Does s.9 Defamation Act 2013 concern personal jurisdiction or subject-matter jurisdiction?
2. Is the standard of proof under s.9 ‘balance of probabilities’ or ‘a good arguable case’?
3. While the legal burden of proof under s.9(2) falls on the claimant, is there nonetheless an evidential burden on a defendant to identify an available alternative forum for the comparison of appropriateness required by s.9?
4. Is expert evidence of foreign law necessary for the comparison under s.9?
5. On a proper construction of Article 3(1) GDPR, was there an arguable case that Ds were ‘established’ in the UK/EU based on ‘any real and effective activity – even a minimal one – exercised through stable arrangements’?
6. On a proper construction of Article 3(2)(a) GDPR, was there an arguable case that Ds’ journalistic processing was ‘related to’ the offering of goods and services in the UK/EU?
7. On a proper construction of Article 3(2)(b) GDPR, was there an arguable case that Ds’ journalistic processing was ‘related to’ ‘monitoring’ of C’s behaviour in the UK/EU?
8. Did C have an arguable case as to Loutchansky malice in respect of Ds1-2?
9. Did C have an arguable case as to s.3 Defamation Act 1952?

Warby LJ, with whom Dame Victoria Sharp P and Elisabeth Laing LJ agreed, held that:

1. Section 9 of the Defamation Act 2013 is a personal jurisdiction provision, not a subject-matter jurisdiction provision. Parliament has modified common law forum conveniens in a particular way, not introduced a new form of jurisdictional bar, and as such s.9 challenges should be raised in accordance with CPR Part 11 in the usual way.
2. The standard of proof is ‘a good arguable case’. The obiter dicta to the contrary in Wright v Ver [2020] EWCA Civ 672 at [60] are disapproved.
3. As a modified form of forum conveniens, the same evidential burden on defendants to identify and establish an available alternative forum also subsists under s.9.
4. No – expert evidence will not always be necessary, and this is a fact-sensitive question: see the recent Supreme Court decision (handed-down shortly after the hearing of this appeal) in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45.
5. Yes – the Patreon subscriptions specifically solicited from the UK/EU were arguably a ‘stable arrangement’ crossing the ‘minimal’ threshold.
6. Yes – the website offered a ‘service’ to UK/EU readers and that was ‘related to’ the journalistic processing of personal data.
7. Yes – the assembly, analysis, sorting and reconfiguration of C’s personal data resulting in publication could arguably constitute ‘monitoring’ within the meaning of ‘behavioural analysis and profiling’.
8. No – the case on Loutchansky malice could not survive reverse summary judgment.
9. This ground did not need to be decided, although Warby LJ made some observations.

This is now the definitive appellate authority on s.9 Defamation Act 2013, which (in claims issued since 1 January 2021) applies to all defendants domiciled outside of the UK (including those who live in the Brussels/Lugano member states). It clarifies some of the conceptual anomalies that arose out of Wright v Ver, Al Sadik v Al Sadik and the judgment under appeal, and keeps defamation in line with the general law of forum conveniens by adopting the approach to construction mandated by the UK Supreme Court in Lachaux v Independent Print Ltd.

Warby LJ indicates (albeit obiter) at [45]-[54] that s.10 Defamation Act 2013 is likely also a personal jurisdiction provision, which is to be taken by way of CPR Part 11 challenge.

This is also the first appellate decision on Article 3 (territorial applicability) of GDPR (which is in materially identical terms to Article 3 UKGDPR). It construes the potential applicability of GDPR to non-EU/UK websites, particularly those offering services (including news journalism, whether or not paid-for) on a website.

• Bailii