(1) Joseph Pacini, (2) Carsten Geyer v Dow Jones & Company Inc [2024] EWHC 2714 (KB)

This was a trial of preliminary issues in a data protection claim.

The Claimants, Joseph Pacini and Carsten Greyer are investment bankers and former senior executives and founding partners of the XIO group of companies, a global alternative investments business with offices in London, Hong Kong and Shanghai. The Defendant, Dow Jones, owns and publishes the Wall Street Journal (“WSJ”) worldwide on its website at WSJ.com.

The Claimants brought a claim in data protection on 16 March 2023 in respect of two articles published by the Defendant. Their claim incorporated a claim that their personal data in the article was inaccurate and, in support of that claim the Claimants asserted that:

(1) The First Article contains personal data and Criminal Offences Data of which Mr Pacini is the data subject as follows: That there were reasonable grounds to suspect that Mr Pacini was party to a conspiracy to defraud Xie Zhikun of nearly $1billion, and had received ‘secret profits’ as a result.

(2) The First Article contains personal data and Criminal Offences Data of which Mr Geyer is the data subject as follows: That there were reasonable grounds to suspect that Mr Geyer was party to a conspiracy to defraud Xie Zhikun of nearly $1billion.

(3) The Second Article contains personal data of which each of the Claimants is the data subject as follows: That there were reasonable grounds to suspect that each Claimant had deliberately failed to provide proper disclosure of the true identity of investors in JD Power to the vendor and the US authorities and had concealed the fact that XIO was an investment vehicle for Xie Zhikun;

(4) The Second Article contains personal data of which Mr Geyer is the data subject as follows: That Mr Geyer falsely informed a Deloitte accountant that the investors into the XIO entity purchasing JD power were not primarily Chinese.

In its Notice of Case, the Defendant pleaded that:

(1) The personal data of the Claimants in the First Article bears the following meaning:

a. That Mr Pacini was one of the executives who had been accused by Mr Xie, in contested legal proceedings in the Cayman Islands, of receiving “secret profits” in an alleged conspiracy to defraud, an allegation denied by Mr Pacini, who said Mr Xie is not and has never been an investor in XIO.

b. That Mr Geyer, to arrange a meeting with a banker, sent an email that described Mr Xie as “Chairman of XIO Fund Advisory Board”.

(2) The personal data of the Claimants in the Second Article bears the following meaning:

a. That Mr Pacini:

i.Was part of an effort to enlist Thomas Borer, a well-connected former Swiss diplomat, to assist XIO in persuading S&P Global that XIO was a credible bidder for J.D. Power;

ii. On behalf of XIO Mr Pacini contacted a financial firm, Hermes, to ask if it would also invest in J.D Power;

iii. Mr Pacini had been one of those accused by Mr Xie, in legal proceedings in the Cayman Islands, of receiving “secret profits” in an alleged fraud, while XIO said Mr Xie is not and has never been an investor in XIO.

b. That Mr Geyer replied to a Deloitte accountant, who had referred to XIO’s “China resident investors”, by stating that “There may be a misconception. The investors into the XIO fund are not primarily Chinese”, which appeared to contrast with a Moody’s Investors Service credit officer saying he had been told by XIO staff weeks previously that XIO’s investors were Chinese.

(3) That the personal data of the Claimants in the First Article is not criminal offence data within the meaning of Article 10 UK GDPR.

(1) The meaning of any personal data within the Articles complained of in the claim of which the Claimants are data subjects (the “First Issue”).

(2) Whether any such data in the First Article is criminal offence data within the meaning of Article 10 UK GDPR (the “Second Issue”).

The First Issue:

That the First Article bears the meaning set out in the words underlined below (with the further words providing immediate context, and the words in italics comprising personal data about which no complaint was made) [83]:

[1] Xie Zhikun claims that he invested $940m in XIO Group in 2014, whereas XIO contends that he has never made any investment at all.

[2] The XIO Chief Executive, Joseph Pacini, has said in an email that “Xie Zhikun is not an investor with XIO and never has been”, has denied Xie Zhikun’s allegations, and has said that other investors, not Xie Zhikun, provided $3.2 billion to the firm in 2014.

[3] Xie Zhikun has commenced a civil claim in the Cayman Islands alleging that XIO executives have conspired to defraud him out of his investment, and that Joseph Pacini (and XIO Chairwoman Athene Li) received secret profits out of the alleged fraud.

[4] In the summer of 2015, during a visit by Xie Zhikun to Europe and Israel on which he was chaperoned by XIO, Carsten Geyer sent an email to arrange a meeting with a banker in which Xie Zhikun was described as “Chairman of XIO Fund Advisory Board”.

That the Second Article bears the meaning set out in the words underlined below (with the further words providing immediate context, and the words in italics comprising personal data about which no complaint was made) [84]:

[1] The source of funding of XIO Group is unclear, and in particular there is a dispute between Xie Zhikun and XIO as to (i) whether (as he contends) he provided almost $1bn to XIO, and this was used to fund XIO’s acquisition of JD Power, or (ii) whether (as XIO contends) he did not and he has no affiliation with

[2] In the context of the JD Power acquisition, XIO Chief Executive Joseph Pacini enlisted Thomas Borer to satisfy S&P Global, the parent company of JD Power, as to whether XIO was a credible bidder for JD Power, and XIO and S&P Global claim respectively that (i) all interested parties were provided with full details of the ownership and funding of XIO and (ii) S&P Global carried out appropriate due

[3] According to XIO, only its four founding partners know who its investors are, and although a Moody’s credit officer was told by XIO staff that its investors were Chinese, Carsten Geyer, a partner in XIO, told a Deloitte accountant that the investors in the XIO fund are not primarily Chinese.

[4] After the acquisition, Xie Zhikun commenced a civil claim in the Cayman Islands, claiming that Joseph Pacini (and XIO Chairwoman Athene Li) agreed to take his money and received secret profits in an alleged

The Second Issue:

That the personal data of the Claimants in the First Article was not criminal offence data within the meaning of Article 10 UK GDPR.

This is the first time that the Court has tried meaning as a preliminary issue in a data protection claim alone.

Of interest to practitioners is the detailed discussion of how the differences between the law of defamation and data protection may require alternative approaches to determinations of meaning [63] – [78]. In the event, however, the Judge proceeded on the basis that the principles applicable in defamation (as summarised in Koutsogiannis), including both the single meaning rule and the repetition rule, applied [82].