In the case of Soriano v Forensic News LLC and others (2021), the Courts previously considered the issue as to whether journalists/newspapers based in the USA could be the subject of libel and data protection proceedings in England and Wales and whether permission should be granted for proceedings issued in England and Wales could be served on them in the USA. The judgment, in that case, was appealed and the conclusion to that appeal was published at the end of 2021 (the background to this matter can be found in our previous blog).
Libel appeal
The Judge summarised the grounds of appeal on the libel case, as set out below:
“38. There are two grounds of appeal: (1) the Judge was wrong to hold that when a court is considering s 9 there is an evidential burden on a defendant to show that another forum is available and appropriate; and (2) having found that the claimant had been “far from forthcoming about his business interests”, the Judge had no safe basis on which to conclude that England and Wales was clearly the most appropriate place in which to bring the libel action, and was wrong to so conclude. The essential contention, which underlies both grounds of appeal, is that the burden always lay on the claimant to satisfy the court, by adducing sufficient evidence of fact and/or law, that England and Wales is the most appropriate place to bring the claim.
39. By his Respondent’s Notice, the claimant seeks to uphold the Judge’s decision on the further and alternative grounds that the Judge was wrong (a) to hold that the standard of proof is the balance of probabilities rather than a good arguable case; and (b) to reject the submission that expert evidence on the availability and appropriateness of an alternative forum is a necessary condition for the comparison required by s 9.
40. The effect of the above is that four inter-related points about s 9 are controversial on the defendants’ appeal:-
(1) Its juridical nature. Should s 9 be treated as a modification, in the context of defamation, of the classic forum conveniens test? Or is it a more far-reaching change in the law, which circumscribes the court’s subject-matter jurisdiction over defamation claims against non-domiciled defendants?…
(2) Burden of proof. Does a defendant contesting jurisdiction under s 9 bear the burden of identifying a competing jurisdiction, and establishing any facts relied on upon support of the proposition that it is at least as suitable as England and Wales, as in a conventional forum conveniens dispute? Or is the position different, with the claimant bearing the entire legal and evidential burden? The Judge took the former view…
(3) Standard of proof. Is the issue to be resolved by applying the usual forum conveniens standard of a good arguable case, or on the balance of probabilities?…
(4) The nature of the evidence required. There are two questions here. The first is whether the claimant was obliged to adduce evidence giving full details of his business interests here and elsewhere or fail in his application. The second is to what extent does the party who bears the burden need to adduce expert evidence about foreign law?…”
Section 9 referred to above is to the corresponding section in the Defamation Act 2013, which states:
“9 Action against a person not domiciled in the UK or a Member State etc
(1) This section applies to an action for defamation against a person who is not domiciled – (a) in the United Kingdom; (b) in another Member State, or (c) in a state which is for the time being a contracting party to the Lugano Convention.
(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.
(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.”
Section 9 was introduced to try to tackle ‘libel tourism’ where foreign nationals would attempt to pursue a claim in libel in the courts of England and Wales even though they had no interests, business or otherwise, in that jurisdiction. Lord Justice Warby observed that the drafting of Section 9 bore some resemblance to the test for establishing whether the Courts of England and Wales are the most convenient forum to try a case (also known as the forum conveniens).
In drawing together the findings in previous cases on the effect of Section 9, Lord Justice Warby summarised the propositions applicable to that section as follows:
“(1) The claimant bears the burden of satisfying the court that England is the most appropriate place in which to bring the claim: Wright v Ver (CA) [60].
(2) When determining that question, the court must consider all the “places”, which in this context means jurisdictions, in which there has been publication of “the statement complained of”, giving that term the expanded meaning identified in s 9(3): Ahuja [31], [41]; Wright v Ver (CA) [61].
(3) Relevant factors for consideration will include the best evidence available to show what all those places are; the number of times the statement has been published in each jurisdiction, and the amount of damage to the claimant’s reputation in England and Wales compared with elsewhere: Ahuja [31]; Wright v Ver (CA) [61-63].
(4) Other relevant factors are likely to include the availability of fair judicial processes in the other jurisdictions in which publication occurred, the available remedies from the courts of the other jurisdictions, the costs of pursuing proceedings in each possible jurisdiction, other factors that might impact on access to justice – for example language barriers – and the location of likely witnesses, as well as the relative expense of suing in different jurisdictions; Ahuja [31]; Wright v Ver (CA) [64-65].
(5) This list of factors is non-exhaustive because the relevant multifactorial question to be answered by the court is whether it can be shown that England and Wales is clearly the most appropriate jurisdiction in which to bring the claim. This will be fact-specific, but it is likely to require the court to make the best assessment that it can on the evidence whether any competing jurisdiction is an appropriate place to bring the claim: Wright v Ver (CA) [65].”
In respect of the libel case, it was conceded that the libel claims satisfied the requirements that the case related to a claim for an injunction and/or damages in the jurisdiction as well as that it had sufficient merits. The only issue for the Judge was whether the Courts of this jurisdiction are clearly the most appropriate forum for the trial of the claims. Lord Justice Warby confirmed in respect of this:
“The most natural conclusion is that the draftsman has taken the classic forum conveniens test as a starting point, introducing these modifications in order to alter the balance by removing or watering down the presumption, referred to in Berezovsky, that England and Wales is the natural forum for a claim in respect of publication here. In addition, although I would not place undue weight on this, I accept the submission of Mr Callus that support for this interpretation is provided by the Explanatory Notes which state, in paragraph 67, that “It is the intention that this new rule will be capable of being applied within the existing procedural framework for defamation claims.”…These are important modifications. They mean that claimants who are better known outside this jurisdiction, or who have global reputations, are likely to find it hard to show that this is “clearly the most appropriate” jurisdiction in which to sue for an international libel. But it does not follow from the significance of the provisions that they should be treated as creating an entirely novel and revolutionary regime.”
Lord Justice Warby further found that the burden of establishing what alternate jurisdictions would be available to hear the case fell upon the Defendant and not the Claimant and further that the test to be applied as to the standard of proof in an application under section 9 is that the Claimant must have a good arguable case rather than the balance of probabilities test.
UK GDPR
The Court also heard a cross-appeal in respect of the decision reached under the UK GDPR. The grounds of appeal were summarised as follows:
“The claimant contends that, contrary to the Judge’s conclusions, he had an arguable case that the GDPR applied to the conduct complained of. He puts forward what, on analysis, are three grounds of challenge.
(1) First, it is said that the maintenance of a website which “specifically and successfully solicits subscriptions in GBP and EUR from readers and subscribers in the UK and EU” arguably amounted to a “real and effective activity – even a minimal one – exercised under stable arrangements”. In other words, the Patreon subscriptions satisfied Article 3(1).
(2) Secondly, it is said that Article 3(2)(a) was arguably satisfied on the basis that the two activities in question, namely (i) the maintenance of the website offering goods and services to data subjects in the UK and EU and (ii) the journalistic processing of the claimant’s personal data were “related to” one another.
(3) Thirdly, it is said to be arguable that Article 3(2)(b) was satisfied on the footing that the journalistic processing complained of was “related to” the “monitoring of [the claimant’s] behaviour” insofar as that behaviour took place within the EU.”
The territorial scope of the UK GDPR is as follows:
“Territorial Scope
(1) This Regulation applies to the processing of personal data in the context of activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.
(2) This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:
(a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or
(b) the monitoring of their behaviour as far as their behaviour takes place within the Union.”
Further, the Judge summarised the provisions of Article 79 GDPR as follows:
“Article 79 of the GDPR is headed “Right to an effective judicial remedy against a controller or processor”. Article 79(1) confers on each data subject a right to an effective judicial remedy “where he or she considers that his or her rights under this Regulation have been infringed …”. Article 79(2) provides that proceedings against a controller or processor shall be brought before the courts of the Member State where the controller or processor has an establishment, or (subject to immaterial exceptions) where the data subject has his or her habitual residence…”
In conclusion, in respect of the claim pursuant to the UK GDPR, Lord Justice Warby said:
“After careful consideration, I find myself in disagreement with the Judge. I have concluded, for the reasons and to the extent that follow, that each of the three lines of argument outlined at [93] above satisfies the Merits Test. I would therefore allow the cross-appeal on the data protection issue.”
Comment
The Judge further ordered that the Information Commissioner should be invited to consider intervening in the case to assist the Court.
This case demonstrates that the jurisdiction of the UK GDPR is far outside of just those conducting business in the UK and it gives firm authority for the Court’s willingness to allow cases to proceed against newspapers located entirely outside of the jurisdiction of England and Wales in the courts of that jurisdiction.
How can we help
Kevin Modiri is a Partner in our expert Dispute Resolution team.
Should you be affected by any defamation or data protection issues, 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.
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