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If I write ill of you while sitting comfortably in my Texas ranch, can you then sue me in England? Well, this is now the case, so be careful!

What Has Happened

On 21st December 2021, in the case of Walter Soriano v Forensic News LLC [2021], the court of Appeal handed down a judgment on data protection and libel. The court granted its permission for an Israeli businessman currently residing in the jurisdiction of the United Kingdom to submit legal proceedings against an American Internet news platform. Mr Soriano claims that Forensic News and several American based journalists had breached his rights under the General Data Protection Regulations by publishing a podcast and seven articles which contained content discussing him, which he found ‘unflattering’.

Providing the leading judgement, Lord Justice Warby allowed Mr Soriano to continue with his claims. He found there to be a ‘real’ instead of a fanciful prospect of success in the claim’. The judges agreed that subscribing to a website was equivalent to a ‘stable arrangement’.

The court found that the behaviour of Forensic News amounted to ‘monitoring’ because the Defendant provided a ‘service’ to EU/UK subscribers ‘related to’ the ‘journalistic’ data processing, assorting and analysis.’

However, on balance, Mr Justice Warby warned Mr Soriano not to get carried away because the contentious points needed more consideration at later hearings. He recommended that the parties approach the Information Commissioner’s Office for its input.

What Does This Mean?

The decision could be historic for media outlets outside of England and Wales publishing articles about UK citizens. Before this judgment, publishers believed they could safely submit articles into the public domain without fearing any international legal sanctions.

However, it is hoped that this ruling will make these media outlets cautious before publishing future articles. If a US-based publisher oversteps the mark, then aggrieved parties will seemingly have more options available through the English and Welsh justice system.

What Impact Could This Have on the Legal Profession?

The ruling is now ‘the definitive appellate authority’ for solicitors advising commercial clients in the arena of libel and section 9 of the Defamation Act 2018. Lawyers should advise similar commercial clients to conduct internal audits to assess the extent of their commercial activities, focusing on the United Kingdom.

If commercial content is offered free of charge, companies could still fall within the bracket of liability if they have funding from a mixture of sources. These could be merchandise, subscriptions, advertising or donations.

This is important as small news outlets conducting ‘minimal’ commercial activity within the United Kingdom jurisdiction (Ie subscription services) could unwittingly breach the General Data Protection Regulation as any such subscription may equate to an ‘establishment’.

From a claimant perspective, lawyers will be better positioned to advise individual clients to safeguard their personal information and mitigate against the risk of their reputations being tarnished by such publishers.     

Lord Justice Warby confirmed that section 9 contains ‘important modifications’ to the ‘forum conveniens test’. This is used by courts to assess the correct forum to hear claims. He continued by assessing it to be neither ‘a far-reaching legal change’ nor a challenging jurisdictional hurdle for claimants to negotiate.

The case clarifies the required burden of proof. For defendants to increase the chances of successfully defending similar claims and challenging the jurisdiction of the UK courts, they should comply with the well-established standard of proof required for the ‘forum conveniens’ test’. To mitigate against the risk of treading on this legislative minefield, they should ensure they have ‘a good arguable case’ and submit compelling evidence supporting their arguments that an alternative jurisdiction is comparable.

Assessing Firms

#Brabners #DWF #ProvenioLitigation #Bermans #DLAPiper #Weightmans #DTMLegalLLP #ExcelloLaw #HillyerMcKeown

This Article Was Written Using the Following Sources

[SOURCE 1] Tobin, Sam – Landmark jurisdiction ruling on data protection and libel claims – 22nd December 2021 - Landmark jurisdiction ruling on data protection and libel claims | News | Law Gazette

[SOURCE 2] Walter Tzvi Soriano v Forensic News LLC et al. [2021] EWCA Civ 1952 - Soriano v Forensic News LLC & Ors [2021] EWCA Civ 1952 (21st December 2021) (bailii.org)

[SOURCE 3] Walter Tzvi Soriano v Forensic News LLC et al [2021] EWCA 56 (QB) - Soriano v Forensic News LLC & Ors [2021] EWHC 56 (QB) (15 January 2021) (bailii.org)

[SOURCE 4] Riad Tawfiq Al Sadik (AKA Riad Tawfiq Mahmood Al Sadek AKA Riad Tawfik Sadik v Suhad Subhi Sadik [2019] EWHC 2717 (QB) - Al Sadik (aka Riad Tawfiq Mahmood Al Sadek aka Riad Tawfik Sadik) v Sadik [2019] EWHC 2717 (QB) (16 October 2019) (bailii.org)

[SOURCE 5] Callus, Greg et al. – Landmark GDPR appeal allowed in Soriano v Forensic News LLC & Ors – 21st December 2021 - Landmark GDPR appeal allowed in Soriano v Forensic News LLC & ors - 5RB Barristers

[SOURCE 6] Section 9 Defamation Act 2013 - Defamation Act 2013 (legislation.gov.uk)

[SOURCE 7] Section 3 Defamation Act 1952

[SOURCE 8] Data Protection Act 2018

[SOURCE 9] Article 3(2)(a) General Data Protection Regulation

[SOURCE 10] Article 3(2)(b) General Data Protection Regulation

[SOURCE 11] Part 6 – Service of Documents – Civil Procedure Rules - PART 6 - SERVICE OF DOCUMENTS - Civil Procedure Rules (justice.gov.uk)

[SOURCE 12] Update to the term of the UK Information Commissioner – 3rd November 2021 - Update to the term of the UK’s Information Commissioner - GOV.UK (www.gov.uk)

Written by Jason Connolly