In Soriano v Forensic News & Ors [2021] EWCA Civ 1952, the claimant was a British citizen, living in the UK, and the defendants were a Californian online news publication and four journalists, all located in the USA. Businessman Walter Soriano alleged the defendants published articles which breached the Data Protection Act 2018 and GDPR, and constituted harassment, libel and malicious falsehood with the damage being caused in England and Wales where the claimant lives and has his main business.
At issue, however, was whether the courts of England and Wales had jurisdiction and whether the claimant could argue a case under GDPR since the publication was targeted at US readers. The High Court allowed the libel claim and some claims on issue of private information to go ahead but refused permission for claims in data protection, malicious falsehood or harassment.
The Court of Appeal allowed Soriano’s cross-appeal on the GDPR claim but dismissed the defendants’ appeal on libel and malicious falsehood.
Giving the lead judgment, Lord Justice Warby found the publication did have an ‘establishment’ in the EU, satisfying the requirement for ‘territorial scope’ under the GDPR. He said they ‘intended’ to make their output known in the UK and EU and ‘expressly solicited subscriptions… via the Patreon platform. They succeeded in securing three subscriptions in sterling and three in Euros. This may be "minimal" activity but nothing more is required’.
5RB, whose barristers acted for the claimant, said the judgment was the first appellate decision on the territorial reach of the GDPR and would ‘have far-reaching implications for all US media corporations’.
On defamation, it said the judgment was now the ‘definitive authority’ on s 9 of the Defamation Act 2019, which applies to all defendants domiciled outside the UK and is a ‘personal jurisdiction provision, not a subject-matter jurisdiction provision. Parliament has modified common law forum conveniens in a particular way, not introduced a new form of jurisdictional bar’.
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