January 17, 2022
Walter Soriano, a British citizen resident in the UK, issued proceedings against Forensic News LLC, situated in the USA, in relation to ten articles it had published online and various social media postings, including on Facebook and Twitter, which appeared to make very serious allegations against Mr Soriano. The allegations included that he was the “thug” of the current Prime Minister of Israel, had close and corrupt links to the Russian State and various individuals of note, was guilty of multiple homicide, had received illegal “kickbacks”, had been convicted of corruption in Monaco, was part of a money laundering operation and made illegal arrangements for corrupt oligarchs and public figures. Mr Soriano relied on breach of the General Data Protection Regulation (2016/679/EU) (GDPR), malicious falsehood, libel, harassment and misuse of private information. Mr Soriano applied for permission to serve the proceedings out of jurisdiction.
Jay J granted permission to Mr Soriano to serve proceedings for the libel claim on the five defendants, as well as limited claims for misuse of private information, but he refused permission to serve any of the other claims, including the claims in data protection and malicious falsehood. In respect of the data protection claim, Jay J held that Mr Soriano did not have a real prospect of success in showing that his claims fell within the territorial scope under Article 3 of the GDPR.
The defendants appealed the decision to allow service out in the libel claim and Mr Soriano cross-appealed, arguing that he should have been permitted to pursue the claims in data protection and malicious falsehood.
For the Court of Appeal’s assessment of the service out appeal in the libel and malicious falsehood claims, see here. As for the claim of breach of the GDPR, the Justices of the Court of Appeal unanimously overturned the first instance decision and allowed the cross-appeal, holding that, in respect of Article 3(1):
- it was arguable and not fanciful to say that Forensic News had an “establishment” in the EU under Article 3(1);
- it was clear that Forensic News intended to make its output available in the UK and the EU and already had a more than minimal readership, which was arguably a “real and effective” activity “oriented” towards the UK and the EU;
- it was arguable that Forensic News’s subscription arrangements for the UK and the EU were “stable arrangements” given that subscriptions were a major income stream; and
- Jay J had wrongly placed too much emphasis on a Tweet from Forensic News, which post-dated the publications, stating that subscribers could now pay in Euros or Sterling.
In respect of Article 3(2), the Court of Appeal held that:
- it was arguable that the journalistic processing complained of was “related to” the offer made by Forensic News to data subjects in the EU to provide them with services in the form of journalistic output; and
- it was arguable that the case fell within Article 3(2)(b) because it could be said that using the internet to collect information on the behaviour in the EU of an individual in the EU and then assembling, analysing and ordering that information into a published article about that behaviour in the EU amounted to engaging in “… the monitoring of [the data subject’s] behaviour … within the Union”: the publication of personal data amounted to “processing” and the preparatory activities were related to that processing; therefore the GDPR applied as the publication amounted to the “processing of personal data of [the data subject]” that was “related to” the monitoring.
Accordingly, the appeal on this aspect of Mr Soriano’s cross-appeal was allowed. Lord Justice Warby also said that given that these issues will need further and definitive consideration, the Information Commissioner should be invited to consider intervening to assist the court. (Walter Tzvi Soriano v Forensic News LLC  EWCA Civ 1952 (21 December 2021) — to read the judgment in full, click here).