[2024] UKUT 105 (AAC)

We have already concluded that the FTT took proper account of the Article 5(1)(a) transparency principle when we addressed the alleged overarching errors raised under Ground 1. The remaining complaint under Ground 3 is a narrower one, namely that the FTT did not have regard to or determine the Information Commissioner’s concerns as to the layering of the information provided on the CIP. For the reasons set out below we reject this proposition.

The FTT was clearly alive to the Information Commissioner’s case in this respect. They summarised this aspect of the EN at [18] of their decision. At [164] they correctly encapsulated her case as follows, “Experian made no attempt to identify the information that individuals were likely to find concerning or surprising and did not address its mind to the questions of what steps it should take to ensure the information was promptly located in the CIP”.

As we have already noted, the FTT were given a demonstration of the CIP’s pages ([135] above). They also referred to this at [163] of their decision, saying “We were taken at length through the consumer information portal”. Accordingly, the FTT were well-positioned to make an assessment as to the accessibility of information within the CIP and as to whether sufficient prominence was accorded to information that was of importance for data subjects. At [177] they concluded that the CIP was “adequately clear” and that “the relevant information is sufficiently prominently displayed and accessible to data subjects who want to understand how their data will be processed”. Mr Pitt-Payne suggested that their reference to “relevant information” was a reference to the information referred to in Article 14(1) and (2). However, it is clear to us that the reference to “relevant information” was a reference to the immediately preceding sentence in [177] where the FTT had accepted that the very large scale of the processing and the use of the data would be surprising to data subjects. Accordingly, the FTT found that information pertaining to the nature of the processing was “sufficiently prominently displayed” and in so finding they took account of their assessment that the scale of the processing and use of the data went beyond data subjects’ reasonable expectations.

In the circumstances it is inaccurate to suggest that the FTT did not address this aspect of the Information Commissioner’s case. It is true that they did so in a relatively compressed way, but no proper basis has been shown for overturning this evaluative assessment, which the FTT were well-placed to make. As Ms Proops suggested, the articulation of a concise conclusion on this point should be seen in its context, namely the FTT were setting out their overall impression after having had the relevant webpages demonstrated to them.

Mr Pitt-Payne emphasised those parts of the Article 29 Working Party’s guidelines on transparency that are concerned with the provision of accessible information in the digital context, particularly [11], [35] and [36] ([94] above). Amongst other points, these passages address layering, including recommending information to include in the first layer. There is nothing to suggest that the FTT were unaware of the guidelines; they were cited to them and they referred to another part of the guidelines when they were considering the residual cohort at [178] of their decision. We are satisfied that the FTT were mindful of these matters; they commented on the advantages and disadvantages of layering at [165] of their decision. However, these paragraphs of the guidelines do not lay down rules of law; it was for the FTT to make their own evaluative assessment as to whether information about Experian’s processing was sufficiently prominently displayed on the CIP; they did so and they found that it was.

We have summarised this ground at [53] above. As we have rejected Grounds 1 and 2 it does not arise.