Soriano v Forensic News LLC & Ors

On an application to serve proceedings out of the jurisdiction, the claimant must establish both a real prospect of success and the relevant jurisdictional gateway. Under article 3 of the GDPR, generic accessibility of a website, limited subscriptions, overseas readership and online investigation do not establish a UK establishment, targeted offering or relevant behavioural monitoring. A claim under section 9 of the Defamation Act 2013 requires proof, on the balance of probabilities, that England and Wales is clearly the most appropriate place to sue. The court may require defendants to provide evidence that an alternative forum is available and capable of granting an adequate remedy. The claimant’s reputation, the place of harm, applicable law, remedies, publication volumes and practical convenience must be assessed cumulatively.

The claimant, habitually resident in England, sought permission to serve proceedings on six US-domiciled defendants. The claims arose from internet publications and social-media posts and included data protection, malicious falsehood, libel, harassment and misuse of private information.

The application raised issues concerning the GDPR’s territorial scope, the merits threshold, section 9 of the Defamation Act 2013, and forum conveniens. The sixth defendant was not properly served and was not dealt with on the merits. The central questions were whether the claims had a real prospect of success and whether England and Wales was clearly the most appropriate forum for the libel claim.

1. Disposition. The application succeeded against the first to fifth defendants for libel and for misuse of private information limited to four photographs. It failed in all other respects. Written submissions on relief, costs and the form of order were invited.
2. GDPR. Article 79(2) provides an independent jurisdictional gateway, including proceedings in the Member State of the data subject’s habitual residence. The claimant nevertheless had to show a real prospect of success under article 3. The first defendant had no UK employees or representatives; limited UK subscriptions and generic accessibility did not amount to stable arrangements under article 3.1. There was no UK targeting for article 3.2(a), and the cookies and analytics relied upon concerned advertising rather than the journalistic investigation complained of under article 3.2(b). The data-protection claim therefore had no arguable case.
3. Other merits issues. The malicious-falsehood case was based on speculation and failed also for inadequate particulars of probable damage under section 3 of the Defamation Act 1952. The social-media posts did not arguably constitute a conscious or negligent abuse of press freedom. The privacy claim was inadequately pleaded as regards the publications generally, but the photographs raised a fact-sensitive article 8 and article 10 balancing exercise and had a real prospect of success.
4. Section 9. The court applied the balance of probabilities. Relevant considerations included publication in all jurisdictions, comparative reputational harm, targeting, available remedies, fair process, witnesses, costs and convenience. Although publication was greater in the United States, the claimant’s reputation was centred in England and Wales. The defendants had not shown that California could entertain a claim for UK reputational damage or provide an adequate remedy. England and Wales was therefore clearly the most appropriate place for the libel action.
5. The sixth defendant had not been properly served, and the court declined to proceed in his absence.