Companies anywhere in the world that offer Patreon subscriptions in pound sterling are subject to EU data protection laws, according to a startling Court of Appeal ruling in England and Wales.
The decision, part of an ongoing lawsuit between an Israeli-British man and a US news publisher that allegedly libelled him in a series of stories published in 2020, is likely to have far-reaching and potentially unintended consequences.
In the case, between dual citizen Walter Soriano and Forensic News LLC, Lord Justice Warby ruled that the EU’s General Data Protection Regulation applied to Forensic because the company’s Patreon page allowed signups in sterling and euros. The judge said this showed Forensic was “established” inside a country subject to GDPR.
“The offer and acceptance of subscriptions in these local currencies is arguably a ‘real and effective’ activity that is ‘oriented’ towards the UK and EU,” said the appeal judgment [PDF].
Forensic had just three Patreon subscriptions in sterling, whereas some 85 per cent of its $50,000 income over 18 months came through the signups site. At the time of writing, the company’s Patreon page offered basic subs at £4 ($5.36) a month, or £46 ($61.73) a month for well-heeled people wanting to buy a branded hoodie and early access to upcoming stories.
Soriano had appealed against a previous High Court ruling that prevented him from suing Forensic under data protection laws. Mr Justice Jay found in January 2021 that Soriano’s lawyers were “far short” of proving Forensic could be sued under GDPR.
Overturning the lower court’s decision, Lord Justice Warby observed: “The key issue under Article 3(1), as I see it, is whether the creation and use of the Patreon subscription facility demonstrates ‘stable arrangements’.”
“Stable arrangements” in EU data protection law means a business targets the region and processes EU citizens’ personal data, as explained by London law firm Bird and Bird [PDF]. The Court of Appeal held that Forensic offering Patreon subscriptions in sterling and euros was enough to cross the “low bar” for the EU law to apply.
English courts were ruling whether EU GDPR applied here because Forensic’s stories were published before Brexit took effect on 31 December 2020.*
Warby, who was judging the case along with Lady Justice Laing and Dame Victoria Sharp, president of the Queen’s Bench division of the High Court (which hears all media and data protection lawsuits), seems to have realised he’s opened a large can of worms.
“As these issues will, so it seems, need further and definitive consideration in this case it seems to me that the Information Commissioner should be invited to consider intervening to assist the court,” he said in the judgment.
The Register has asked the Information Commissioner’s Office if it will take up the Court of Appeal’s invitation.
Soriano’s case against Forensic will now proceed on libel and data protection grounds. ®
*All EU law in force on 31 December 2020 was copied into UK law and continues in effect today. GDPR itself survives as a frozen creature within the UK’s Data Protection Act referred to as UK GDPR. Currently, the EU considers that the UK’s data protection laws give it data adequacy.
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