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Soriano v Forensic News LLC & ors [2021] EWCA Civ 1952
The Court of Appeal has held that where an American corporation and journalists report on a British citizen about his behaviour in Russia and Israel, it is possible for a claim to be brought in England and Wales on ordinary principles of jurisdiction and forum conveniens. While the rules and case law in this field are complex and much will turn on the facts of each case, one hurdle for claimants is establishing ‘a good arguable case’. Where claims are based on GDPR, that will require establishing that the defendant was in fact subject to GDPR on the basis of its provisions about territorial and material scope.
Here, the defendants argued that GDPR’s territorial scope did not extend to them, since they were wholly based in America. But Art 3(1) GDPR provides that the territorial scope of GDPR extends to ‘the processing of personal data in the context of activities of an establishment or processor in the Union, regardless of whether the processing takes place in the Union or not.’
The Court of Appeal applied the CJEU’s case law on the meaning of ‘establishment’ in other related contexts, and also referred to the GDPR’s recitals and the EDPB’s persuasive Guidelines 3/2018 on the Territorial Scope of the GDPR. They held that on the facts, which included that the defendants ‘intended to make their output available in the UK and EU, and succeeded in attracting a more than minimal readership’, and that they had obtained three subscriptions to their website in pounds sterling and three in Euros, there was a stable arrangement which meant it was at least arguable that any processing fell within the territorial scope of Art 3(1).
They also held that Art 3(2), in relation to the offering of goods or services to individuals within the EU, was arguably met, on the basis of the same subscription offerings, and on the basis of monitoring a data subject within the EU.
Given the difficult and relatively untested issues that arose, the Court suggested that the Information Commissioner be invited to intervene to assist for later stages of the proceedings. They also made clear that given the adoption of the EU GDPR in the form of the UK GDPR, the decision is ‘not of merely historic interest’. Indeed, since the UK GDPR replaces ‘Union’ in Art 3 EU GDPR with ‘United Kingdom’, there is if anything even more scope for issue about territoriality in future.
Soriano v Forensic News LLC & ors [2021] EWCA Civ 1952
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
