Soriano v Forensic News LLC & Ors: Enhanced Interpretation of Defamation Act 2013 s9 and GDPR Jurisdiction
Introduction
The case of Soriano v Forensic News LLC & Ors [2021] EWCA Civ 1952 marks a significant judicial pronouncement by the England and Wales Court of Appeal (Civil Division) on December 21, 2021. The litigation centers around Walter Soriano, a dual British and Israeli citizen, who initiated proceedings against six media defendants, including Forensic News LLC and individual journalists, for defamatory publications, misuse of private information, breaches of data protection laws, malicious falsehood, and harassment. The core legal disputes pertain to the application of Section 9 of the Defamation Act 2013 concerning jurisdiction over libel claims against defendants domiciled abroad, specifically in the United States, and the territorial scope of the General Data Protection Regulation (GDPR) as it applies to actions against foreign entities.
Summary of the Judgment
The High Court initially granted Soriano permission to serve five defendants with libel and certain misuse of private information claims but denied permission for other claims, including those under data protection and malicious falsehood. The defendants appealed the permission for libel claims, challenging the High Court's interpretation of s9 of the Defamation Act 2013, while Soriano cross-appealed to permit the additional data protection and malicious falsehood claims. The Court of Appeal upheld the High Court's decision regarding libel claims, dismissing the defendants' appeal. However, it allowed Soriano's cross-appeal concerning the GDPR claims, indicating a more nuanced approach to jurisdiction under data protection laws.
Analysis
Precedents Cited
The judgment extensively references prior case law to frame the legal standards for jurisdiction in defamation and data protection cases:
- Berezovsky v Michaels [2000] – Established the precedent for considering each publication as a separate tortious act in defamation.
- Ahuja v Politika Novine I Magazini D.O.O [2015] – Interpreted s9 of the Defamation Act 2013 in cases involving claimants with global reputations.
- Wright v Ver [2020] – Applied s9 in the context of internet-based defamation, emphasizing the need for a comparative analysis of publication locales.
- Google Spain SL v AEPD [2014], Weltimmo sro v Nemzeti Adatvedelmi es Informacioszabadsag Hatosag [2016], and Verein fur Konsumerenteninformation v Amazon EU Sarl [2017] – Shaped the interpretation of "establishment" under GDPR Article 3(1).
- Lachaux v Independent Print Ltd [2019] – Provided interpretative guidance on the Defamation Act 2013, emphasizing legislative intent.
Legal Reasoning
The Court of Appeal delved into the intricate interplay between the Defamation Act 2013 and GDPR in determining jurisdiction:
- Defamation Act 2013, Section 9:
- Introduced a distinct regime for defamation claims against non-UK domiciled defendants, aiming to curb "libel tourism."
- Requires a comparative analysis of all publication locales to ascertain if England and Wales is the most appropriate forum.
- Burden and Standard of Proof:
- The claimant bears the primary burden to demonstrate that England and Wales is the appropriate jurisdiction.
- The standard of proof under s9 aligns with the traditional "good arguable case" rather than the "balance of probabilities."
- GDPR Territorial Scope:
- Article 3(1) focuses on the "establishment" of the controller or processor in the EU, requiring a flexible interpretation to accommodate online-only businesses.
- Article 3(2) introduces "targeting" and "monitoring," expanding GDPR's reach to international data controllers interacting with EU data subjects.
- Malicious Falsehood:
- Requires proving false statements made maliciously, a higher threshold than defamation.
- The Court upheld the High Court's dismissal due to insufficient evidence of malice.
Impact
The judgment has profound implications for cross-border defamation and data protection litigation:
- Libel Tourism: Reinforces the safeguards against suing in English courts for defamation when the claimant's reputation is not substantially linked to the UK, thereby reducing the misuse of English defamation laws.
- GDPR Jurisdiction: Clarifies the application of GDPR to non-UK entities, especially in the digital age where online-only businesses interact with EU data subjects. This fosters greater accountability for data controllers and processors globally.
- Legal Precedents: Updates and refines the judicial approach to interpreting statutory provisions concerning jurisdiction, emphasizing a balanced analysis over rigid procedural applications.
- Procedural Considerations: Highlights the necessity for thorough disclosure and evidentiary support in international litigation, impacting how claims are structured and presented in court.
Complex Concepts Simplified
- Libel Tourism: The practice of pursuing defamation claims in foreign jurisdictions perceived to be plaintiff-friendly, often without substantial connection to that jurisdiction.
- Section 9 of the Defamation Act 2013: A legal provision that restricts where defamation claims can be filed, especially against defendants outside the UK, to prevent libel tourism.
- General Data Protection Regulation (GDPR) Article 3: Defines the territorial scope of GDPR, determining when and where it applies to data controllers and processors outside the EU.
- Forum Conveniens: A legal doctrine allowing courts to dismiss a case where another court or forum is significantly better suited to hear the case.
- Good Arguable Case: A standard of proof requiring the claimant to present sufficient evidence to warrant a hearing, though not necessarily proving the case outright.
- Malicious Falsehood: A tort requiring false statements made with malice, meaning the intent to harm or with reckless disregard for the truth.
Conclusion
The Soriano v Forensic News LLC & Ors decision serves as a pivotal reference point in the realms of defamation and data protection law. By reinforcing the jurisdictional safeguards against libel tourism through a nuanced interpretation of s9 of the Defamation Act 2013, the Court of Appeal underscores the necessity for substantive connections between the claimant and the UK. Concurrently, the judgment extends clarity on GDPR's territorial application, accommodating the complexities introduced by digital and online-only business models. While the court upheld previous limitations on malicious falsehood claims due to insufficient evidence, the allowance of GDPR claims against foreign defendants paves the way for more robust data protection enforcement. This case exemplifies the judiciary's adaptive approach to evolving legal challenges in an increasingly interconnected global landscape, balancing the protection of individual reputations and data privacy against the backdrop of international relations and digital communications.
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