Hegglin v Person(s) Unknown & Anor

Permission to serve proceedings out of the jurisdiction requires a serious issue to be tried, a good arguable case within an applicable jurisdictional gateway, and England to be clearly or distinctly the appropriate forum. For an injunction gateway, the injunction must form a genuine part of the substantive relief and there must be a reasonable prospect that it will be granted. The width of the injunction is ordinarily a matter for trial. A tort gateway may be satisfied where damage results from substantial and efficacious acts within the jurisdiction. A good arguable claim under the Data Protection Act 1998, informed by Costeja González, supported service on a foreign search-engine operator.

The claimant sought permission to serve Google Inc., a Delaware corporation located in California, with proceedings out of the jurisdiction. He alleged that an unidentified person or group had published abusive and defamatory allegations about him on numerous websites. The claim against Google sought injunctions under sections 10 and/or 14 of the Data Protection Act 1998 and Directive 95/46/EC, together with a Norwich Pharmacal order to identify the first defendant.

The central issues were whether the claim engaged the relevant Practice Direction 6B gateways and whether England was the appropriate forum.

1. Permission granted. The claimant satisfied the three-stage test for service out: a serious issue to be tried, a good arguable case within an applicable gateway, and England as the clearly or distinctly appropriate forum.

2. Under paragraph 3.1(2) of Practice Direction 6B, an injunction must be a genuine part of the substantive relief and there must be a reasonable prospect of an injunction being granted. The precise width of the injunction and its practical necessity were matters for trial.

3. The statutory causes of action under the Data Protection Act 1998 were clearly established in principle, with at least a good arguable case for some injunction against Google.

4. Under paragraph 3.1(9), the court considered whether damage was sustained within the jurisdiction or resulted from substantial and efficacious acts committed there. The claimant’s United Kingdom home, business interests and reputational harm supplied the necessary connection.

5. Following Costeja González, there was at least a good arguable case that Google was a data controller for relevant search-engine processing and was subject to obligations enforceable in England. The necessary and proper party gateway created no separate issue.

Leave was granted to serve the claim form on Google Inc. out of the jurisdiction in respect of each cause of action.