Walter Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point (Sebdo) & Anor.

Specific disclosure should be ordered where the applicant establishes a prima facie case that the documents are relevant to a pleaded issue and likely to support or adversely affect a party’s case. The order must also be necessary, proportionate and consistent with the overriding objective. In a public interest defamation case, material gathered during the journalist’s investigation may bear on the objective reasonableness of the defendant’s belief. Subscriber identities may be relevant to serious harm, particularly where corporate databases or compliance services may have accessed the publication. Practical safeguards, including focused searches, redaction and the implied undertaking, may address proportionality and data protection concerns.

The claimant brought a libel claim concerning an article published by the defendants, a French magazine publisher and its journalist. The defendants relied on the public interest defence under section 4 of the Defamation Act 2013 and denied serious harm.

The claimant sought two specific disclosure orders. The first concerned searches for documents relating to the journalist’s investigation, further email chains and mobile devices. The second sought information identifying subscribers in England and Wales who had accessed the article. The applications raised relevance, proportionality, disclosure obligations and data protection issues.

1. Both applications granted. The court approved the claimant’s draft orders for specific disclosure.
2. Under CPR 31.12 and Practice Direction 31A, paragraph 5.4, the court considers all the circumstances, the overriding objective, prima facie relevance to a pleaded issue, whether the documents are likely to support or adversely affect a party’s case, and proportionality. The disclosure obligation extends to electronic documents under CPR 31.4.
3. The public interest defence was a central, fact-sensitive and heavily disputed issue. Material known to the journalist before publication, including material obtained or considered during the investigation, was capable of bearing directly on whether the defendants’ belief was objectively reasonable under section 4(1)(b) of the Defamation Act 2013. The claimant therefore established a prima facie case for focused searches using specified terms and a proportionate period.
4. The order was appropriately limited by requiring the first defendant to search only material to which the journalist had access at the relevant time where he no longer retained access. The requests for further email chains were also sufficiently defined. The claimant was not required at this stage to prove that further emails existed; it was sufficient to show that they might exist and might be relevant.
5. Searching the journalist’s mobile devices was appropriate because those devices had not previously been searched and might contain relevant material.
6. Subscriber information had potential significance to the serious-harm issue. The identities of publishees could assist the inferential case, including whether corporate subscribers used the article for due-diligence or compliance purposes. The request was focused and proportionate.
7. Concerns concerning natural persons’ data protection rights could be addressed through redaction, challenge to any claimed withholding and the implied undertaking restricting collateral use of disclosed material. The orders were therefore justified in all the circumstances.

The judgment is a first-instance decision. It records earlier procedural orders and decisions in the same litigation, but no appeal from those decisions is stated.