Insights High Court rules on the “territorial scope” of the GDPR for the first time and on jurisdiction in libel claims


Mr Walter Soriano, a British citizen and resident in the UK, issued proceedings against Forensic News LLC, situated in the USA, in relation to ten articles it had published online and various social media postings, including on Facebook and Twitter. Mr Soriano relied on breach of the General Data Protection Regulation (2016/679/EU) (GDPR), malicious falsehood, libel, harassment and misuse of private information. Mr Soriano applied for permission to serve the proceedings out of jurisdiction.

Mr Justice Jay said that by way of preliminary assessment, the publications appeared to make extremely serious allegations against Mr Soriano asserting, for example, that he was the “thug” of the current Prime Minister of Israel, had close and corrupt links to the Russian State and various individuals of note, was guilty of multiple homicide, had received illegal “kickbacks”, had been convicted of corruption in Monaco, was part of a money laundering operation, and made illegal arrangements for corrupt oligarchs and public figures.

The first issue was whether there was a basis on both jurisdiction and the merits for the claim in data protection under the GDPR (2016/679/EU). Mr Soriano relied upon the jurisdictional gateway set out in CPR Practice Direction 6B, paragraph 3.1(20). Jay J noted that the test he had to apply to resolve the jurisdiction question on an interim basis was the “good arguable case” test as clarified in Four Seasons Hotel v Brownlie [2017] UKSC 80. The burden of proof was on Mr Soriano. As for the merits test, the burden of proof was on Mr Soriano to show that he had a real prospect of success on the claim.

Jay J noted that jurisdiction for the data protection claim was conferred by Article 79(2) of the GDPR. On the evidence, there was no doubt that Mr Soriano satisfied the habitual residence test.

Jay J noted that the merits aspect of the claim engaged Article 3 of the GDPR, which defines the “territorial scope” of the GDPR. Article 3(1) provides that the GDPR applies to the processing of personal data “in the context of activities of an establishment of a controller or processor in the Union”, regardless of whether the processing takes place in the Union or not. Article 3(2) provides that the GDPR 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 either: “(a) the offering of goods or services to data subjects in the Union; or (b) the monitoring of their behaviour as far as it takes place within the Union”.

The issue was whether Mr Soriano had demonstrated a real prospect of success on the merits on either or both parts of Article 3 of the GDPR. In Jay J’s judgment, Mr Soriano had not.

In terms of Article 3.1, Jay J said that the absence of a branch or subsidiary of Forensic News in the UK was by no means determinative. However, it was relevant that Forensic News had no employees or representatives in this country. The fact that Forensic News had a readership in the UK that was not minimal was of no more than marginal relevance. It was clear that Forensic News’s journalistic endeavour was not oriented towards the UK in any relevant respect and the fact that the content of the website might be of interest to some readers in the UK was not relevant, nor was the fact that Mr Soriano had joint British nationality. The real question was whether Mr Soriano’s arguments on “establishment”, i.e., “any real and effective activity — even a minimal one — exercised through stable arrangements” (see Weltimmo sro v Newzeti Adatvedelmi es Informacioszabadsag Hatosag [2016] 1 WLR 863) were such as to enable him to pass through the merits portal. Jay J did not accept the proposition that less than a handful of UK subscriptions to a platform that solicited payment for services on an entirely generic basis, and which could be cancelled at any time, amounted to “arrangements” that were sufficient in nature, number and type to fulfil the language and spirit of Article 3.1 and amount to being “stable”.

As for Article 3(2)(a), there was nothing to suggest that Forensic News was targeting the UK as regarded the goods and services it offered. That the UK was a potential shipping destination for merchandise did not fulfil sub-paragraph (a).

As for Article 3(2)(b), Jay J accepted that Mr Soriano had an arguable case that Forensic News’s use of cookies was for the purpose of behavioural profiling or monitoring, but he said that that was purely in the context of directing advertisement content. There was no evidence that the use of cookies had anything to do with the “monitoring” that formed the real complaint: Forensic News’s journalistic activities had been advanced not through any deployment of cookies, but by using the internet as an investigative tool. That was not the sort of “monitoring” that Article 3(2)(b) had in mind. In other words, the monitoring that properly fell within this provision, i.e. the behavioural profiling that informs advertising choices, was not related to the processing complained about (assuming that carrying out research online about Mr Soriano amounted to monitoring at all).

Jay J concluded, therefore, that Mr Soriano did not have an arguable case under the GDPR. He added, however, that had he reached a different conclusion on the merits he would have found in Mr Soriano’s favour on forum conveniens. The claim under the GDPR would have to be brought in the courts of a Member State of the EU and there was nothing to suggest that England and Wales would have been other than the most natural and appropriate forum for trial.

As for the malicious falsehood claim, the question was whether Mr Soriano had a real prospect of success of proving “malice”. Jay J found that Mr Soriano’s primary case on malice was “a synthetic edifice which ha[d] no basis in substance”. Further, he said, Mr Soriano’s claim in Loutchansky malice, which requires proof that Forensic News continued to publish without amendment or clarification after clear and categorical denials had been made, was “equally thin”.

As for the claim in harassment, the question was whether Mr Soriano had a real prospect of success in proving that the social media publications, taken as a whole, amounted to a “conscious or negligent abuse of press freedom” (Sube v NGN [2020] EWHC 1125 (QB)). In Jay J’s view, they did no more than draw attention to the publications on Forensic News’s website for the purpose of drawing in potential readers. The language deployed was not understated but could not fairly be described as a campaign of harassment. The only reasonable inference was that Forensic News was exercising its rights of free speech against someone whose activities it believed merited being placed in the public domain. There was no tenable basis for concluding that Forensic News might have been driven by motives other than a bona fide journalistic one, even if it might have been misguided or resulted in a substantial number of untruths being published, as to which no judgment could fairly be made at this stage. Overall, there was no real prospect of success at trial.

Mr Soriano’s case in misuse of private information was based on all the publications, as well as four photographs in which he asserted a reasonable expectation of privacy. Mr Soriano claimed that three of the photos were “ripped from the social media accounts of a child in his family”. The fourth was obtained from an article in The Telegraph.

The question was whether this issue fell within the “intrusion limb” of the tort of privacy, as opposed to the “confidentiality limb”. In Jay J’s view, there was a clear difference between the photographs and all the other material. Mr Soriano had not specified in exactly which information he claimed to have a reasonable expectation of privacy. Given that the material was not homogenous, it was not appropriate to throw everything into the claim in an undifferentiated and indiscriminate manner. Even if it were possible to identify individual elements of a sustainable claim for misuse of private information within the “morass”, Mr Soriano had not undertaken the exercise mandated by CPR Practice Direction 53 and it would be oppressive to allow him to serve this claim out of the jurisdiction on the basis put forward.

As for the photographs, however, the circumstances in which they were taken and then obtained by Forensic News was not clear, and it was arguable that they did depict Mr Soriano in a private or personal setting, along with family members (whose faces were pixilated). Whether these publications were sufficiently intrusive entailed a fact-sensitive balancing exercise. On the evidence available, Jay J did not consider that it could be performed in such a way as to defeat the claim. However, the court had a discretion in service-out cases. In Jay J’s view, a claim limited to the photographs alone would not justify this discretion being exercised in Mr Soriano’s favour. Mr Soriano therefore had to show a reasonable prospect of success on the libel claim.

On the libel claim, Jay J said that, given Mr Soriano’s domicile, s 9 of the Defamation Act 2013 clearly applied. He therefore had to assess the nature and extent of Mr Soriano’s reputation in England and Wales. Although Mr Soriano was a private man and, Jay J said, had been “far from forthcoming about his business interests both here and overseas”, which made Jay J’s job more difficult, given the extent of publication in England and Wales, Mr Soriano had a convincing argument that he had suffered serious harm to his reputation within the meaning of s 1 of the 2013 Act.

As for the extent of publication in other jurisdictions, notably the US where publication was greater, Jay J said that it was a question of appropriateness. Mr Soriano was not seeking to recover damages for publication in the US. The question was whether he would be able to obtain reputational damage sustained in the UK if he were required to sue in the US. There was no evidence either way. It was up to Forensic News to provide such evidence and it had not done so. Therefore, Jay J had to conclude that suing in the US would mean that Mr Soriano would not receive an adequate remedy.

Referring to Wright v Ver [2020] EWCA Civ 672, in which it was found that the preponderance of publication in the US was a strong factor militating in favour of the US being the most appropriate forum, Jay J found that the preponderance of publication being outside England and Wales was a less weighty countervailing consideration in the circumstances of this case.

Forensic News had identified a Californian court as the appropriate forum. The burden was on Mr Soriano to show on the balance of probabilities that the courts of England and Wales were clearly the most appropriate place to bring the action. Ultimately, Jay J concluded that Mr Soriano had discharged the relevant burden.

The final issue to consider was the classic forum conveniens issue and whether England and Wales was clearly the most appropriate place to try the claims that had survived the merits test, i.e. the misuse of private information/privacy claim in relation to the four photographs. Taken in conjunction with the libel claims, Jay J was satisfied that it was appropriate to exercise his discretion in favour of Mr Soriano.

Accordingly, Mr Soriano’s application to serve out succeeded in relation to the claims in libel and in misuse of private information/privacy, but failed in all other respects. (Walter Tzvi Soriano v Forensic News LLC [2021] EWHC 56 (QB) (15 January 2021) — to read the judgment in full, click here).