In the case of Soriano v Forensic News LLC and others (2021), the Court was faced with the task of determining whether the Claimant (Walter Soriano) should be permitted to serve proceedings pursuant to the General Data Protection Regulations (GDPR) and in defamation out of the jurisdiction of England and Wales (and indeed Europe).
Soriano v Forensic News LLC and others
Case summary
The Claimant is and has been a British Citizen since 2009 and has resided in the UK since 2003. All of his family reside in the UK as well and his main centre of business interest is in England (although he has some property in Israel and in the USA).
The Defendants are an online news publication known as Forensic News LLC (first Defendant) and (save for the sixth Defendant who has his own publication) the remaining Defendants were journalists that contributed to Forensic News LLC articles. All of the Defendants are located in the USA.
Forensic News LLC published overall 159 articles in respect of President Trump’s financial affairs and the activities of Psy Group, a private Israeli intelligence company in Ukraine and in 10 of those articles alleged that Psy Group was connected to the Claimant. At paragraph 20 of the judgment, Jay J sums up the articles concisely as follows:
“I have read the Publications, which are quite short, and the transcript of the podcast, which is quite long. It is unnecessary to dwell on the detail because, although PD has informed the court that the defence of public interest to the libel claim will be pleaded, it is obviously not possible at this stage to make any merits assessment without evidence. Suffice it to say that, by way of preliminary assessment, the Publications appear to make extremely serious allegations against the Claimant at various Chase levels (including level one) asserting, for example, that he is the “thug” of the current Prime Minister of Israel, has close and corrupt links to the Russian State and various individuals of note, is guilty of multiple homicide, has received illegal “kickbacks”, has been convicted of corruption in Monaco, is part of a money laundering operation and makes illegal arrangements for corrupt oligarchs and public figures. Mr Price’s skeleton argument describes these publications as “very far from hit pieces”. I am not sure quite what he means by that, but on any view they amount to a sustained assault on the Claimant and his reputation.”
The claim issued by the Claimant makes allegations against all of the Defendants on the basis of breaches of the Data Protection Act 2018/GDPR, under the Protection from Harassment Act, libel and malicious falsehood on a global basis but with the damage having been caused in England and Wales due to the Claimant residing and having his main business there.
Court ruling
The questions before the Judge was whether the claims had sufficient merit to proceed, whether the Courts of England and Wales had jurisdiction and where the appropriate forum for the hearing should be. In deciding whether the Claimant had an arguable case under GDPR in this case failed as Jay J was not satisfied that the Defendants were targeting their publication at the UK. Rather it was largely targeted at the USA and the fact that a number of people read the publication in the UK did not change that fact.
There was a debate about whether the fact that the website put cookies on to a readers computer with a view to targeted marketing affected the argument that the Defendants were providing services within the EU/England and Wales. The Judge found that the cookies were not targeted with a view to disseminating news but rather were for other products not provided by the Defendants and accordingly the Judge did not believe that this was sufficient in itself to provide the Claimant with a prospect under GDPR.
On malicious falsehood, Jay J held:
“90. Reflecting on these submissions since the hearing, I have concluded that the Claimant’s primary case on malice is a synthetic edifice which has no basis in substance…
99. The high point of the Claimant’s case on loss appears in para 57.3 of the Particulars of Claim. This asserts, without giving particulars, that the Claimant has incurred “considerable expenses” in meeting the concerns expressed by the Compliance Departments of banks. In my judgment, this is too vague an averment to amount to the giving of particulars of the allegedly probable damage as required by Tugendhat J. It follows that the claim in malicious falsehood also fails at the hurdle of s.3 of the 1952 Act.”
The harassment argument was couched in the terms that the social media articles amounted to a “concerted campaign of cyber-bullying”. Jay J could not see that such an argument was supported by the evidence before the Court and in this regard found:
“Overall, I am unable to conclude that there is a real prospect that the Claimant might demonstrate at trial that the Defendants have perpetrated an abuse of press freedom.”
In respect of the argument in privacy, the Court found that this was insufficient to stand on its own and accordingly was wholly reliant on a finding in respect of libel. In respect of libel, Jay J confirmed:
“164. Ultimately, I have concluded that the Claimant has discharged the relevant burden. The Claimant is a British citizen whose personal and business interests lie principally within this jurisdiction. He seeks remedies in respect of harm to his reputation which is centred within this jurisdiction. The claims relate to publications here and nowhere else. He is not a libel tourist. Most significantly, the Defendants have not discharged the evidential burden as to whether a Californian court would countenance a claim for reputational harm suffered in England and Wales, or as to whether a remedy in the US would be adequate in these circumstances. There are other evidential burdens the Defendants have failed to discharge. All these factors, taken cumulatively, fall to be balanced against those which repose in the Defendants’ favour, in particular the greater extent of US publication and the inconvenience to them of having to litigate in this jurisdiction. The outcome, in my judgment, is that the courts of England and Wales are clearly the most appropriate place to bring the claim.”
Accordingly, the outcome of the application was summed up at paragraph 169 of the judgment as follows:
“169. In relation to the First to Fifth Defendants, the Claimant’s application to serve-out succeeds in relation to the claims in libel and in misuse of private information/privacy (albeit only as regards the four photographs). The Claimant’s application fails in all other respects.”
Comment
The case of Soriano v Forensic News LLC and others is a clear example of the issues that can be faced by people defamed online, whether by individuals or publications, and the complex jurisdictional web that online platforms such as Facebook and other similar social media platforms have created and must be circumnavigated by Judges before cases can even be served on Defendants out of the jurisdiction of England and Wales.
How Nelsons can help
Kevin Modiri is a Partner in our expert Dispute Resolution team.
Should you have been affected by any comments made about you online, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.