The claimant Walter Tzvi Soriano and the defendants, including Forensic News LLC – Court Ruling (United Kingdom, 2021)

The High Court of England and Wales examined a claim against the news website Forensic News LLC and several journalists contributing to its articles. Both the news website and the journalists are based in the US. The claim concerned different news articles containing allegations on the claimant’s connection with an Israeli intelligence company, which the claimant asserted represented a breach of the GDPR and several other laws. As preliminary point of law, the court considered the question whether GDPR is applicable to the situation at hand. Concretely, the court examined whether the matter could fall under any of the three criteria for the extraterritorial application of the GDPR, as prescribed by Articles 3(1), 3(2) and 79(2) of the GDPR. The criteria considered were – whether Forensic News LLC had an establishment in the EU, whether it offered goods and services to individuals in the EU, and whether it monitored the behavior of individuals in the EU. On the first point, the court found that Forensic News LLC did not have any stable arrangements in the UK, and the “establishment” criteria was therefore not met. For this conclusion, it was decisive that the news website had no employees or representatives in the UK. On the other hand, the fact that Forensic News LLC had a readership in the UK and a “handful” of UK subscriptions was not sufficient to prove establishment. On the second point, the court’s position was that Forensic News LLC did not directly target UK consumers with its goods and services. The fact that the UK is a shipping destination for the website’s merchandise was disregarded due to lack of actual purchases – the court found that, in the UK, only one baseball cap was purchased from the website. Finally, on the third point, the court considered that the monitoring undertaken by Forensic News LLC was not sufficient to justify extraterritorial application of the GDPR. Namely, the news website used cookies for the purpose of behavioral profiling or monitoring in the context of targeted advertising. The court found that this is not the “monitoring” that GDPR had in mind. An argument used by the court was that the website did not use such monitoring to propagate the news but rather for an activity unrelated to the claimant’s claim (advertising). As none of the three criteria was met, the court established that the GDPR did not apply to Forensic News LLC.