Walter Tzvi Soriano v Forensic News LLC & Ors.

Section 9 of the Defamation Act 2013 is a tailored modification of the ordinary forum conveniens inquiry, not a freestanding bar on subject-matter jurisdiction. The claimant bears the legal burden, but a defendant contesting jurisdiction bears an evidential burden concerning an available competing forum. The applicable standard is a good arguable case, and expert evidence of foreign law is not invariably required.

For territorial scope under the General Data Protection Regulation, minimal but real online subscription arrangements directed to the United Kingdom and EU can establish an arguable establishment. Journalistic collection, analysis and publication of information about an individual’s EU behaviour can arguably amount to monitoring. Continued publication after denial does not, without more, establish malice in malicious falsehood.

The claimant, a British businessman resident and domiciled in England, sued United States-based media defendants over online publications alleging serious wrongdoing. He sought permission to serve claims outside the jurisdiction for libel, misuse of private information, data protection, malicious falsehood and harassment.

Jay J granted permission for the libel claims and a limited claim for misuse of private information concerning photographs, but refused permission for the data protection and malicious falsehood claims: [2021] EWHC 56 (QB). The defendants appealed the grant concerning libel and privacy. The claimant cross-appealed the refusals concerning data protection and malicious falsehood.

The central issues were the construction and application of section 9 of the Defamation Act 2013, the territorial reach of GDPR Article 3, and whether the pleaded malicious-falsehood claim had a real prospect of proving malice.

1. Appeal dismissed; cross-appeal allowed in part. The order permitting service of the libel claims and the limited photographs claim for misuse of private information was upheld. The data-protection cross-appeal succeeded. The malicious-falsehood cross-appeal failed.

2. Section 9 of the Defamation Act 2013 modifies, rather than replaces, the established forum conveniens framework. It requires the court to consider publication in all relevant jurisdictions and statements conveying the same or substantially the same imputation. It does not create a separate, unwaivable bar on the court’s subject-matter jurisdiction. A challenge under the section is to be made within the existing procedural framework, including CPR Part 11.

3. The claimant retains the legal burden of showing that England and Wales is clearly the most appropriate forum. A defendant who actively contests that issue bears an evidential burden concerning a competing forum and facts said to make it suitable. The appropriate standard is a good arguable case. The evidence required is case-sensitive; neither detailed disclosure of every overseas business interest nor expert evidence of foreign law is an absolute precondition.

4. On the judge’s unchallengeable findings, the claimant’s reputation was centred in England and Wales, where he lived and conducted his principal personal and business life. The defendants had not shown that a Californian action would provide adequate vindication for harm to that reputation. England and Wales was therefore clearly the most appropriate place for the libel action under section 9.

5. The limited privacy claim concerning photographs remained properly joined to the libel claims. Its permission was parasitic on the libel permission and was not independently challenged.

6. The claimant had a real prospect of establishing GDPR territorial scope. Subscription arrangements allowing UK and EU readers to subscribe in sterling or euros could arguably be stable arrangements constituting an EU establishment under Article 3(1). The journalistic processing could also arguably be related to offering journalistic services under Article 3(2)(a), and to monitoring the claimant’s behaviour in the EU under Article 3(2)(b).

7. Malice in malicious falsehood is tantamount to dishonesty. Continued publication after a denial, silence in response to a complaint, or an intention to rely on a public-interest defence rather than a plea of truth, does not alone make malice probable. The judge was entitled to find the pleaded case untenable. The court did not decide the disputed pleading issue under section 3(1) of the Defamation Act 1952.

• Court of Appeal (Civil Division): Appeal against permission to serve the libel and limited privacy claims dismissed. Cross-appeal allowed as to GDPR territorial scope, but dismissed as to malicious falsehood: [2021] EWCA Civ 1952.
• High Court (Queen’s Bench Division, Media and Communications List): Permission granted to serve libel claims and limited misuse-of-private-information claims; permission refused for data-protection, malicious-falsehood and harassment claims: [2021] EWHC 56 (QB).