Walter Tzvi Soriano v Forensic News LLC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lady Justice Elisabeth Laing,Dame Victoria Sharp |
| Judgment Date | 21 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1952 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA 2021-000484 (and 000484 A) |
[2021] EWCA Civ 1952
Dame Victoria Sharp, PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lady Justice Elisabeth Laing
and
Lord Justice Warby
Case No: CA 2021-000484 (and 000484 A)
(formerly A2/2021/0445 (and 0445A))
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Mr Justice Jay
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Price (instructed by Gibson, Dunn & Crutcher UK LLP) for the Appellants
Greg Callus and Ben Hamer (instructed by Rechtschaffen Law) for the Respondent
Hearing dates: 6 & 7 October 2021
Approved Judgment
I. Introduction
This is an appeal and a cross-appeal against a decision of Jay J by which he granted the claimant permission to serve five media defendants in their jurisdictions of domicile in the United States of America with proceedings for libel and limited claims for misuse of private information, but refused permission to serve a variety of other claims advanced by the claimant. The defendants' appeal challenges the grant of permission to serve the libel claim. It raises issues about s 9 of the Defamation Act 2013, which contains a new test for jurisdiction over libel claims against those domiciled abroad. The claimant's cross-appeal challenges the refusal to allow service of claims in data protection and malicious falsehood. It raises issues about the territorial scope of the General Data Protection Regulation (GDPR) and requires us to consider whether the Judge was right to find that the claimant's malicious falsehood claims are untenable.
II. The case in a nutshell
The claimant, Walter Soriano, is a businessman, who was naturalised as a British citizen in May 2009 after moving to the United Kingdom in 2003. He also has Israeli nationality. The first defendant is a California corporation that owns and operates Forensic News, a publication with the stated mission of delivering “original long-form investigative journalism that actually matters”. Forensic News operates via a website, a Twitter account, a Facebook page, and podcasts. Its journalistic output is made available free of charge to members of public, with funding drawn from a mix of sources, including subscriptions, donations, merchandise sales and advertising revenue. The second defendant is a journalist, and founder of Forensic News. He and the other individual defendants are all domiciled in the United States. Three of them are journalists, and contributors to Forensic News. The sixth defendant appears to be a blogger, independent of the other defendants.
Between 5 June 2019 and 16 June 2020, a series of eight publications appeared on Forensic News outlets which referred to the claimant in unflattering terms. There was a podcast and seven articles. Some of these included photographs of him which he claims were stolen from social media accounts. There were two further publications making reference to the claimant on a website said to be operated by the sixth defendant. In addition, there were some 432 tweets and Facebook posts that referred to the various publications complained of, to which hyperlinks were provided.
The gist and substance of the publications complained of was summarised in paragraph [20] of the judgment below, where Jay J set out this “preliminary assessment”:-
“… the Publications appear to make extremely serious allegations against the Claimant at various Chase levels (including level one) asserting, for example, that he is the “thug” of the current Prime Minister of Israel, has close and corrupt links to the Russian State and various individuals of note, is guilty of multiple homicide, has received illegal “kickbacks”, has been convicted of corruption in Monaco, is part of a money laundering operation and makes illegal arrangements for corrupt oligarchs and public figures. Mr Price's skeleton argument describes these publications as “very far from hit pieces”. I am not sure quite what he means by that, but on any view they amount to a sustained assault on the Claimant and his reputation.”
The reference to Chase levels is to the three main levels of gravity of a defamatory imputation, identified by this court in Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR 11 namely (1) guilt; (2) reasonable grounds to suspect guilt; and (3) reasonable grounds to investigate whether there is guilt.
On 14 July 2020, the claimant issued proceedings against all six defendants in the High Court of England and Wales in respect of the ten publications, the tweets, and the Facebook posts. He made claims under the laws of libel, misuse of private information (“MOPI”), data protection, malicious falsehood, and harassment.
The libel claim was brought against all six defendants in respect of publications 2 to 8; the MOPI claims were made against all six defendants in respect of all ten publications; the data protection claim was against all six defendants in connection with all the publications, and additional processing; the malicious falsehood claim was brought in respect of publications 1 to 8, but against the first and second defendants only; and the harassment claim was brought against all the defendants in respect of all the publications, and what was dubbed “the torrent of social media posting”. All the claims were confined to tortious conduct causing damage in this jurisdiction except for the data protection claim, which complained of breach of duty without geographical limitation.
As all the defendants are domiciled abroad, none of these claims could be brought against any of them unless (a) they agreed to it, which none of them did, or (b) the Court gave permission to serve them with the claim outside the jurisdiction, pursuant to Part 6 of the Civil Procedure Rules. The claimant issued an application for permission. Such applications are normally determined without notice to the respondent. If permission is granted, the respondent may apply to set it aside. On 30 September 2020, Nicklin J ordered that the application notice and supporting evidence be served on the defendants. He gave directions for the service of evidence by the defendants, and the exchange of skeleton arguments. He reasoned that this was not a straightforward application and if permission were granted on an ex parte basis there was a real prospect that the respondents (or some of them) would apply to set it aside. It would save time and costs “to direct that the Application Notice be served on the Respondents so that they can, if they wish, oppose the application.” The defendants did serve evidence and instructed solicitors and Counsel to oppose the application.
On 21 January 2021, after a contested hearing, Jay J granted the claimant's application for permission to serve the first five defendants with his claims in libel and some of the claims in misuse of private information. He refused permission to serve those defendants with the bulk of the claims in misuse of private information and refused him permission to serve them with any claim in data protection, malicious falsehood, or harassment.
The first to fifth defendants now appeal against that decision, with the permission of Arnold LJ, contending that the Judge was wrong to grant permission for the libel claims, and any claim in misuse of private information. The claimant supports the Judge's decision on those two causes of action for the reasons the Judge gave, and additional reasons. With the permission of Arnold LJ, the claimant cross-appeals, arguing that he should also have been allowed to pursue the claims in data protection and malicious falsehood.
The claimant does not challenge the Judge's decision to refuse permission for the rest of his claim in MOPI, or the refusal of permission to bring a claim in harassment, about which no more need be said. Nor are we concerned with the application for permission to serve the sixth defendant. That was adjourned by Jay J and dealt with in April 2021 by Johnson J. He granted permission to serve the sixth defendant with claims in libel but gave permission to appeal that decision. The claim was later settled, and the appeal dismissed by consent. The judgment of Johnson J is before us, but only passing reference was made to it in oral argument and it too can be put to one side.
III. The law on service outside the jurisdiction and forum conveniens
This is well-established. For present purposes, it can be adequately distilled as follows. The court can only give permission to serve a claim on a defendant outside the jurisdiction if it meets three conditions.
(1) The first is that the claim is of a kind that falls within one of the “gateways” set out in CPR Practice Direction 6B (“the Gateway Requirement”). On this question, the claimant has to satisfy the Court that he has a good arguable case or, as it is sometimes put, the better of the argument. This connotes “more than a serious issue to be tried or a real prospect of success but not as much as the balance of probabilities”: AstraZeneca UK Ltd v Albemarle International Corp [2010] EWHC 1028 (Comm), [2010] 2 Lloyd's Rep. 61 [24] (Hamblen J).
(2) Secondly, the claimant must satisfy the court that he has a real as opposed to a fanciful prospect of success on the claim (“the Merits Test”). One way this has been put is that the claimant has to show that any “reverse” summary judgment application would fail.
(3) Thirdly, “[t]he court will not give...
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