Soriano v Forensic News LLC

The Court of Appeal considered (a) whether the High Court was right to give permission to serve a libel claim out of the jurisdiction against defendants domiciled in the United States under section 9 of the Defamation Act 2013 and the usual forum conveniens principles, and (b) whether permission should have been given to serve claims in data protection (under the GDPR) and malicious falsehood. The court held that section 9 is best read as a tailored modification of the classic forum conveniens test rather than a freestanding subject‑matter jurisdictional bar, that the claimant need show a good arguable case rather than a higher civil standard, and that the evidential burden on a defendant to identify and support any alternative forum remains part of the comparative exercise. Applying those principles to the facts, the court dismissed the defendants’ appeal and upheld the grant of permission to serve the libel claims because the claimant’s reputation and centre of interests were properly shown to be in England and Wales.

On the cross-appeal the court dismissed the challenge to the judge’s refusal to permit service of malicious falsehood claims (the judge was entitled to find no real prospect of proving malice or of particularised special damage). However, the court allowed the claimant’s cross-appeal in part in relation to the data protection claim, concluding that the claimant had an arguable case that the GDPR could apply (notably under Article 3(1) and Article 3(2)) and that the Merits Test on territorial scope had been satisfied for permission purposes.

This is an appeal (and cross-appeal) from Jay J’s decision granting permission to serve US‑domiciled defendants with libel proceedings and limited misuse of private information claims, but refusing permission for most claims in misuse of private information, data protection, malicious falsehood and harassment. The claimant is a naturalised British citizen domiciled and resident in London. Defendants are publishers and journalists based in the United States operating an online publication and associated social media outlets.

Procedural history: the claimant applied for permission to serve proceedings out of the jurisdiction under Part 6 CPR; Nicklin J ordered the application to be served on the defendants and directed evidence to be exchanged; after a contested hearing Jay J [2021] EWHC 56 (QB) granted permission to serve the first five defendants with the libel claims and certain limited claims in misuse of private information but refused permission for the rest of the MOPI claims and all data protection, malicious falsehood and harassment claims. The first five defendants appealed; the claimant cross‑appealed on data protection and malicious falsehood.

Issues: (i) the juridical nature and proper interpretation of section 9 Defamation Act 2013 (the test for actions against persons not domiciled in the UK or Member States), and the standard and burden of proof when assessing whether England and Wales is "clearly the most appropriate" forum; (ii) whether the High Court was entitled to find that England and Wales was clearly the most appropriate forum for the libel claims; (iii) whether the claimant had a real prospect of establishing that the GDPR applies to the defendants’ processing (Article 3(1) establishment criterion or Article 3(2) targeting/monitoring criteria); and (iv) whether the malicious falsehood claim had a real prospect of success (malice and special damage).

Reasoning and outcome on libel: the court held that s 9 should be read as a modification of the forum conveniens regime rather than an entirely separate subject‑matter jurisdictional bar. The method of comparative assessment under s 9 involves consideration of all jurisdictions of publication and the expanded concept of the statement complained of. The claimant must meet the statutory test but the evidential burden remains on a defendant who identifies an alternative forum to adduce evidence in support of that position. The court preferred the conventional forum‑conveniens standard (a good arguable case) for the s 9 assessment. Applying these principles to the facts, and having regard to the evidence about the claimant’s domicile, residence, business and the scale and location of publication, the court concluded the judge was entitled to find that England and Wales was clearly the most appropriate forum and dismissed the defendants’ appeal.

Reasoning and outcome on data protection: the court held that the GDPR territorial scope issues raised novel and finely balanced points but that the claimant had crossed the Merits Test threshold. It was held arguable that (a) the defendants had stable arrangements or an "establishment" for Article 3(1) (for example by soliciting and securing subscriptions in local currencies using Patreon) and (b) the processing complained of could be "related to" offering services or to the monitoring of behaviour under Article 3(2). The Court of Appeal allowed the claimant’s cross‑appeal on jurisdiction to the extent that the GDPR claim satisfied the merits gateway for permission to serve out; it recommended that the Information Commissioner be invited to consider intervening in further proceedings.

Reasoning and outcome on malicious falsehood: the court held the claimant could not show a real prospect of proving malice or of pleading sufficiently particularised probable pecuniary loss under s 3(1) of the Defamation Act 1952, and dismissed the claimant’s cross‑appeal on malicious falsehood.

The Court of Appeal dismissed the defendants’ appeal and upheld the High Court’s grant of permission to serve the libel claims out of the jurisdiction. The court held that section 9 of the Defamation Act 2013 is a tailored modification of the forum conveniens test, that the claimant must establish a good arguable case that England and Wales is clearly the most appropriate forum and that a defendant who alleges a suitable alternative forum bears an evidential burden to support that contention. The claimant’s cross‑appeal was allowed in part: the court concluded the claimant had a real prospect on the territorial scope of the GDPR (Articles 3(1) and 3(2)) and so permission should have been available in respect of the data protection claim; the cross‑appeal was dismissed in relation to malicious falsehood for want of a tenable case of malice and particularised special damage.

The claim began with a without‑notice application for permission to serve proceedings outside the jurisdiction; Nicklin J ordered the application to be served on the defendants and directed exchange of evidence. Jay J heard the contested application and gave judgment on 21 January 2021 (reported at [2021] EWHC 56 (QB)). The first to fifth defendants were granted permission to appeal to the Court of Appeal; the claimant obtained permission to cross‑appeal on data protection and malicious falsehood. This appeal was decided by the Court of Appeal on 21 December 2021 ([2021] EWCA Civ 1952).