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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Soriano v Forensic News LLC & Ors [2021] EWHC 56 (QB) (15 January 2021) URL: https://www.bailii.org/ew/cases/EWHC/QB/2021/56.html Cite as: [2021] EWHC 56 (QB) |
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
WALTER TZVI SORIANO |
Claimant |
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- and – |
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(1) FORENSIC NEWS LLC (2) SCOTT STEDMAN (3) ERIC LEVAI (4) JESS COLEMAN (5) ROBERT DENAULT (6) RICHARD SILVERSTEIN |
Defendants |
____________________
Jonathan Price (instructed by Gibson, Dunn and Crutcher UK LLP) for the First to Fifth Defendants
The Sixth Defendant was neither present nor represented
Hearing dates: 14th and 15th December 2020
____________________
Crown Copyright ©
MR JUSTICE JAY:
Introduction
The Parties
The Publications
The Claims
The Issues
Some Preliminary Observations
(1) the burden is on the Claimant to show that England and Wales is clearly or distinctly the most appropriate forum.
(2) the court is required to determine which jurisdiction is the most appropriate: if not England and Wales, the application for service-out must fail.
(3) the question is not to be answered simply with reference to the relief claimed: such relief may be peculiar to the courts of England and Wales, and will skew the exercise.
(4) the court will examine the whole dispute between the parties and will not confine itself to the parameters in which it has been framed by the claimant.
The First Issue: the Data Protection Claim
"Right to an effective judicial remedy against a controller or processor
1. Without prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Article 77, each data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation.
2. Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has his or her habitual residence, unless the controller or processor is a public authority of a Member State acting in the exercise of its public powers."
"Territorial Scope
1. This Regulation applies to the processing of personal data in the context of activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.
2. This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:
(a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or
(b) the monitoring of their behaviour as far as their behaviour takes place within the Union."
"(23) … In order to determine whether such a controller or processor is offering goods or services to data subjects who are in the Union, it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union. Whereas the mere accessibility of the controller's, processor's or an intermediary's website in the Union, of an email address or of other contact details, or the use of a language generally used in the third country where the controller is established, is insufficient to ascertain such intention, factors such as the use of a language or a currency generally used in one or more Member States with the possibility of ordering goods and services in that other language, or the mentioning of customers or users who are in the Union, may make it apparent that the controller envisages offering goods or services to data subjects in the Union.
(24) … In order to determine whether a processing activity can be considered to monitor the behaviour of data subjects, it should be ascertained whether natural persons are tracked on the internet including potential subsequent use of personal data processing techniques which consist of profiling a natural person, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes."
"… In addition to being applicable only to processing by a controller or processor not established in the Union, the targeting criterion largely focuses on what the processing activities are "related to", which is to be considered on a case by case basis.
The EDPB stresses that a controller may be subject to the GDPR in relation to some of its processing activities but not subject to the GDPR in relation to other processing activities. …
…
When taking into account the specific facts of the case, the following factors could therefore inter alia be taken into consideration, possibly in combination with one another:
- The EU or at least one Member State is designated by name with reference to the good or service offered;
- The data controller or data processor pays a search engine operator for an internet referencing service in order to facilitate access to its site by consumers in the Union; or the controller or processor has launched marketing and advertisement campaigns directed at an EU country audience;
- The international nature of the activity at issue, such as certain tourist activities;
- The mention of dedicated addresses or phone numbers to be reached from an EU country;
- The use of a top-level domain name other than that of the third country in which the controller or processor is established …;
- The description of travel instructions from one or more other EU Member States to the place where the service is provided;
- The mention of an international clientele …;
- The use of a language or currency other than that generally used in the trader's country …;
- The data controller offers the delivery of goods in EU Member States."
"… the EDPB considers that tracking through other types of network or technology involving person data processing should also be taken into account in determining whether a processing activity amounts to a behavioural monitoring, for example through wearable and other smart devices.
…
The EDPB does not consider that any online collection or analysis of personal data of individuals in the EU would automatically count as "monitoring". It will be necessary to consider the controller's purpose for processing the data and, in particular, any subsequent behavioural analysis or profiling techniques …
…
The application of article 3.2(b) … could therefore encompass a broad range of monitoring activities, including in particular:
- Behavioural advertisement
- Geo-location activities, in particular for marketing purposes
- Online tracking through the use of cookies …
- Personalised diet and health analytics services online
- CCTV
- Market surveys and other behavioural studies based on individual profiles
- Monitoring or regular reporting on an individual's health status."
The Second Issue: the Malicious Falsehood Claim
"I am instructed that the email exchange which ensued constituted the entirety of the communications between the Second Defendant and Mr Persico, save for sporadic and direct brief messages between them on the Signal messaging platform (perhaps numbering a dozen messages or so over a number of months, prompted by the appearances of [the Claimant's] name in mainstream news articles) which are no longer available to the Second Defendant."
PD does not explain why these messages are no longer available. There are a number of possibilities, once of which being that they were deleted intentionally to cover up tracks. Mr Callus invited me to draw an adverse inference in line with the principle in Armory v Delamarie [1722] 1 Strange 505.
"The Claimant's case is that none of the above is a coincidence. For the reasons set out in his pleading, he contends that the Second Defendant created the First Defendant at the behest of Raviv Drucker (whether directly or indirectly, including operating through Mr Persico of Seventh Eye) with a view to laundering the Claimant's information into the public domain."
"So we have all these dots pretty much saying that [the Claimant] is close to Netanyahu and we have all you know, at this point we have like 10 reference points of him being close to Netanyahu, which is just super, super interesting given his connections to the Russian government. And this is just a web of connections that the Senate is certainly looking into. And I'd be surprised of the FBI wasn't looking into him as well.
…
… it's interesting with [the Claimant] like these Russians that I've studied for the past two years and all these, you know, shady money laundering people, they usually don't put their name to the LLC like they'll have a lawyer in the country to do that … But there's a good chance that he has a ton of money invested in the UK and we don't know whose money it is."
Mr Callus relies on other sections of the transcript which I have also considered.
"In my judgment if a trader, such as each of the Claimants in this case, makes a claim for malicious falsehood and, as he is entitled to do, he relies not on any actual damage, but on probable damage such as is referred to in the 1952 Act section 3, the Claimant must nevertheless give particulars of the nature of the allegedly probable damage and the grounds relied on for saying that it is more likely than not. For example, if what is relied on is the probability of such a trader having to incur expenses in advertising and other forms of publicity in order to counter the effects of the alleged falsehoods, then the Particulars of Claim should identify that probable damage. On the other hand, the damage which, it is said, is more likely than not to be a consequence of the alleged falsehood, may be delay in sales of a given number of vehicles, or loss of sales of a given number of vehicles, or the difference between the price at which vehicles will be saleable following publication of the falsehood complained of and the higher price at which it is said they would probably have been saleable but for the publication of the falsehood complained of. In such cases, then the Particulars of Claim should likewise identify that probable damage."
The Third Issue: Harassment
The Fourth Issue: Misuse of Private Information/Privacy
The Fifth Issue: Libel
"9 Action against a person not domiciled in the UK or a Member State etc
(1) This section applies to an action for defamation against a person who is not domiciled—
(a) in the United Kingdom;
(b) in another Member State; or
(c) in a state which is for the time being a contracting party to the Lugano Convention.
(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied 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 an action in respect of the statement.
(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of."
"…the effect of s.9 will be to oblige the court to consider all the jurisdictions where the defamatory statement has been published, in order to determine whether the domestic jurisdiction is clearly the most appropriate place in which to bring the action. As the Explanatory Notes to the Act make clear, "… if a statement was published 100,000 times in Australia and only 5,000 times in England that would be a good basis on which to conclude that the most appropriate jurisdiction in which to bring an action … was Australia rather than England". However, the extent of publication in different jurisdictions may have little bearing on where the claimant's reputation mainly lies and on where that reputation has been most seriously damaged, and the Explanatory Notes rightly suggest that the court would wish to take into account such matters as the amount of damage to the claimant's reputation in England and Wales compared with elsewhere, the extent to which publication was targeted at a readership in England and Wales compared with elsewhere, and whether there was reason to think that the claimant would not receive a fair hearing elsewhere. No doubt the court will also wish to consider such factors as the convenience of witnesses and the relative expense of suing in different jurisdictions. It would be unsurprising if claimants resident in England and Wales were to surmount the new threshold more readily than foreign claimants."
(1) All the jurisdictions in which the relevant statement had been published.
(2) The number of times on which a statement has been published in each jurisdiction.
(3) The amount of damage to the claimant's reputation in England and Wales compared with elsewhere.
(4) Whether particular readers here were targeted.
(5) The availability of fair judicial processes in the other jurisdictions in which publication occurred, the availability of remedies, language barriers, the costs regime, and the location of likely witnesses.
"78. Seventhly the evidence established that the Courts in the US would have jurisdiction over the claim made by Dr Wright against Mr Ver, who had consented to the jurisdiction of the US Courts. Although the evidence did not address the specifics of remedies available to Dr Wright in each respective state in the US beyond the statement that New York was a Court of "general jurisdiction", there was nothing in the evidence to suggest that Dr Wright would not be able to obtain damages to vindicate his reputation in any state for all the relevant publications in the US. Although Mr Wolanski attempted to sub-divide the publications in the US according to each individual state it was not apparent that this point had been taken before the judge, but more importantly there was no evidence suggesting that any state in the US which would accept jurisdiction would not be able to provide Dr Wright with an adequate remedy for the totality of the publications in the US. There was no evidence showing that Dr Wright would have difficulties in obtaining access to justice in any state in the US beyond his unexplained hearsay assertion that he had been told that it would be difficult.
79. Eighthly there was no evidence that any relevant witness would have difficulty in providing evidence in any state in the US, but it might fairly be noted that neither party had provided details of relevant witnesses or made any effort on the evidence to identify what were the likely issues.
80. In all these circumstances in my judgment, on the evidence before the judge, a state in the US which would accept jurisdiction over this claim, which includes California, is the most appropriate jurisdiction in which to bring this claim."
In a situation where Dr Wright had a global reputation it could not be said that the seat of his reputation was located in any particular jurisdiction. There was no prejudice to him in requiring him to bring his action in a State in the US rather than anywhere else.
"Although it was ultimately always for the claimant to show that it is a proper case for service-out, where this is disputed by the defendant on a specific ground such as the existence of a jurisdiction agreement which it is alleged obliges the claimant to bring the claim before the courts of another country, it is for him to establish the agreement, its scope, applicability and validity rather than for the claimant to prove a negative."
" A defendant challenging jurisdiction must identify another candidate, which does have jurisdiction to determine the dispute, and the question will be tested by reference to the identified candidate: Unwired Planet v Huawei (SC) [96]. The other candidate must be an "available" forum, in the sense that the dispute must be capable of being tried there: Unwired Planet v Huawei (SC) at [96]-[98].
352. It was common ground that "appropriateness" is a wider concept than natural forum, in the sense of the most closely connected forum, and is a central part of the assessment: Cherney v Deripaska [2009] 2 CLC 408 [12]-[23]. So, for example, England can be the most appropriate and proper forum even if not the natural forum, if there are factors that show the natural forum is a less appropriate forum than England [20]. And another forum will not be appropriate, even if the forum most closely connected to the dispute, if there is a real risk that substantial justice will not be obtainable there: Lungowe at [88]; Cherney at [26].
353. Given the arguments on the facts made to me, I need to say a little more on the legal approach to the consideration of the risk that substantial justice will not be obtained. This matter is essentially concerned with well-known "fair trial" considerations: corruption, unfairness, or other inherent defectiveness of the foreign legal system. Bearing in mind the respect due to foreign courts, "cogent evidence" is required of a "real risk" of this: Cherney at [14], [27]-[28], [29], [44], [60]."
"When assessing whether there is another more appropriate forum, the court will consider what connecting factors exist in relation to that forum, such as the place where the alleged wrongs were committed and the governing law of the pleaded claims. The governing law is an important factor because it is generally preferable that a case should be tried in a country whose law applies … If there is no other available forum which is clearly more appropriate the court will ordinarily refuse a stay."
The Sixth Issue: Classic Forum Conveniens
The Sixth Defendant
Disposal