In our first post on the decision of Mr Justice Jay in Soriano v Forensic News LLC and Others [2021] EWHC 56 (QB) we focused on the Judge’s analysis of the circumstances in which the GDPR will apply to a publisher based outside the EU (and by analogy the UK GDPR to a publisher based outside the UK).
This second post looks at the decision in relation to Mr Soriano’s libel claim, and in particular s.9 Defamation Act 2013.
Mr Soriano succeeded where a number of claimants have failed in recent years. That is (when suing a foreign defendant), satisfying the court that of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring a libel action.
Post-Brexit, s.9 will have increased importance in international libel claims. Claimants will now need to satisfy the “clearly the most appropriate” test when suing any defendant domiciled outside the UK (s.9 does not apply in relation to defendants based in EU/Lugano Convention states pursuant to the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019/479 Pt 2 reg.69).
The parties
As a quick reminder, the Claimant is Walter Soriano, an Israeli national habitually resident in Britain and a British citizen.
The First Defendant is Forensic News LLC, a website said to be run from the California home of the parents of the Second Defendant: 24 year old Scot Stedman. The Third to Sixth Defendants are all said to be collaborators/associates of Mr Stedman. All, like him, are domiciled in the US.
Evidence was adduced by the Defendants to show that 74.84% of visitors to Forensic News hail from the US, with only 4.87% from the UK.
The publications
Mr Soriano’s libel claim concerns seven Forensic News publications.
As set out in the first post, the Judge’s preliminary view of the publications complained of was that they:
‘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…on any view they amount to a sustained assault on the Claimant and his reputation‘. (para. 20)
Section 9 Defamation Act 2013
By its wording, and pursuant to the early authorities, s.9 Defamation Act requires a comparative analysis of ‘of all the places in which the statement complained of has been published‘.
This requires consideration of factors such as: where the publications mainly occurred; where the primary ‘seat’ of the claimant’s reputation lies; and other pragmatic issues bearing on the convenience of the parties.
Issue: the standard of proof in s.9 applications
In Wright v Ver [2020] 1 WLR 3913, Dingemans LJ held (obiter) that the standard of proof in s.9 applications is the ‘balance of probabilities’.
Mr Soriano sought to challenge this, arguing that the lower ‘good arguable case’ test should apply, as it does in classic forum conveniens determinations. He argued that this test should apply whenever the court is determining a jurisdiction application on an interlocutory basis.
This was rejected by the Judge. He held (at para. 120) that s.9 is a ‘distinct parallel regime whose requirements must be met by a claimant independently of issues as to service and personal jurisdiction‘. Furthermore, s.9 requires the court to be ‘satisfied’ – the same requirement as s.10 for which there is authority that the civil standard of proof applies.
Issue: the ‘seat’ of the Claimant’s reputation
The Claimant in Wright (see above) failed to surmount the s.9 test, partly because it was concluded that he had a ‘global’ reputation: a factor which militated against England and Wales being clearly the most appropriate forum.
In the present case, the Judge noted that while the Claimant had adduced some evidence that his personal and business life is centred in England and Wales, he had been ‘far from forthcoming about his business interests both here and overseas‘ and that the impression given was one of ‘excessive reticence bordering on secrecy‘ (para 138).
Despite this, he rejected the Defendant’s invitation to infer that the Claimant’s reputation is in fact a ‘global’ one:
‘…I do not think that the Claimant’s reputation may fairly be described as “global”…Despite the evidential lacunae, England and Wales may be identified as the place where the Claimant’s reputation is most obviously centred…‘ (para. 141)
It is clear from the decision that the Judge considered that the Defendant had not done enough to rebut the Claimant’s evidence that his personal and business life is centred in this jurisdiction, noting that ‘the available evidence does not demonstrate that it is centred anywhere else‘ (para. 142).
The Judge went on to say that the Claimant has ‘a convincing argument‘ that the publications have caused serious harm to his reputation for the purposes of s.1 Defamation Act 2013, given the extent of publication in England and Wales (para. 145).
Issue: the extent of publication in other jurisdictions
As noted above, the visitors to the Forensic News website overwhelmingly originate from the US.
In relation to the eight publications complained of from the website (seven of which form the basis of the libel complaint), there was evidence that the ‘hits’ from the US varied from 48.46% to 81.18% of the total hits, whereas hits from the UK varied between 5.53% and 35.9%.
The Claimant demonstrated that by sub-dividing the US hits into three jurisdictions: California, New York and Pennsylvania, England and Wales was in fact ‘first place’ on four occasions, with California in first place on the other four (and England and Wales coming in either second or third).
Despite this analysis, the Judge held that the ‘appropriate comparison should be between publication in England and Wales on the one hand and publication throughout the US on the other. The majority of publications took place in various US States and these may fairly be aggregated for present purposes‘ (para. 146).
The Judge also held that while each US state is technically a separate jurisdiction, it would ‘defy common sense to hold that the State of California would not accept jurisdiction for all publications in the US’.
Issue: appropriateness of England and Wales
It is the Judge’s decision on this issue which at first sight is perhaps the most surprising. As well as the overwhelming extent of publication being in the US, the Judge noted that:
‘the Defendants and such witnesses they may choose to call on the public interest defence or more generally are all in or likely to be in the US, and that it would be inconvenient to say the least for them to be constrained to litigate in the courts of England and Wales. Given the disparity in resources, the inconvenience to the Claimant in litigating in the US would not be as great as the inconvenience to the Defendants in litigating here’. (para. 147)
Despite this, the Judge determined England and Wales to be clearly the most appropriate jurisdiction.
In doing so, he placed heavy emphasis on (i) the centre of the Claimant’s reputation being in this jurisdiction, (ii) the fact he is seeking remedies in respect of the damage to his reputation in this jurisdiction, and (iii) it was incumbent upon the Defendants to adduce evidence that a Californian court would countenance a claim for reputational harm suffered in this jurisdiction – a burden they failed to discharge.
On the lack of evidence from the Defendants, the Judge held:
‘The absence of any evidence as to the system of libel law and practice in California makes it impossible to make any meaningful comparisons [with the position the Claimant would face in England]. This is not a situation where the court may adopt the working hypothesis that foreign law matches domestic law. It would be absurd in these circumstances to assume, for instance, that Californian law offers the same remedies as exist under the Defamation Act 2013 and has the same costs regime, to take just two examples, in the absence of evidence to the contrary’. (para. 151).
‘I conclude that the Defendants’ failure to discharge the evidential burden on key issues means that the Claimant, if compelled to litigate in California, would not receive an adequate remedy for reputational damage sustained in England and Wales’. (para. 157).
It therefore seems that the Claimant’s residence and citizenship have outweighed the extent of publication as relevant factors, although this was strongly influenced by the evidence (or lack of) as to the extent to which the Claimant could have obtained a remedy in California.
Other causes of action
In relation to the other causes of action relied on by the Claimant, the Judge held that the Claimant failed to meet the ‘real prospect of success’ test in respect of his claims for unlawful data processing, malicious falsehood, harassment, and misuse of private information (at least in part).
The Judge allowed the part of the misuse of private information claim to proceed in relation to four photographs, but only on the basis that he had allowed the libel claim to proceed. He indicated that, taken in isolation, he would not have exercised his discretion to allow service-out of the jurisdiction of the privacy claim in respect of four photographs alone.
Comment
The decision underscores the evidential burden on both parties to a s.9 application.
The Claimant appears to have narrowly got home with his evidence that the centre of his reputation lies in England and Wales. Future claimants should be wary of adopting a similarly reticent/secretive approach, particularly where there are grounds for arguing that he/she has a ‘global’ reputation.
It remains the case that a Claimant found to have a global reputation will face an uphill struggle in establishing that England and Wales is clearly the most appropriate place in which to bring a libel claim. When a feature of the claim is a preponderance of publication in another jurisdiction then this is likely to be strong factor militating in favour of that jurisdiction being the most appropriate jurisdiction (see Wright v Ver).
For Defendants, the decision shows the importance of adducing evidence, both to rebut a Claimant’s claim that his/her reputation is centred in England and Wales, but also of there being a more appropriate jurisdiction for the claim to be heard in than this jurisdiction. It is not for a Defendant to sit back and allow the Claimant to try and meet the s.9 test.
There complications are lessened somewhat if the claimant can establish a claim for unlawful data processing instead of libel. But, as covered in our first post, the Claimant in this case was unable to establish that the Defendants were subject to the GDPR.
For claimants who can establish that the GDPR applies, the forum conveniens test will now (post-Brexit) apply to claims in the UK (instead of Article 79 GDPR). The forum conveniens test is an easier test to satisfy than the “clearly the most appropriate” test under s.9 but still a more onerous burden than the pre-Brexit position of being able to sue either in the claimant’s place of residence or where the data controller has an establishment.
As for the convenience of the parties, this will perhaps be a less weighty factor in the post-Covid world. In this case, the Judge made his view clear:
‘I have mentioned the difficulties to the Defendants of being required to litigate in this jurisdiction. At a purely instinctual level, it seems unfair that the Defendants should be compelled to do this: after all, these are not their claims. On the other hand, I consider that these difficulties should not be overstated. The experience of the last ten months or so has demonstrated that trials can take place perfectly fairly and efficiently without parties being present. Instructions can be given remotely. Wherever this libel claim is tried is likely to involve a flexible use of modern technology‘. (para. 162).
Ashley Hurst is a partner and International Head of Tech, Media & Comms at Osborne Clarke LLP. Henry Fox is a Senior Associate in the Commercial Disputes team at Osborne Clarke LLP.
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