[2024] UKUT 105 (AAC)

The overarching ground of challenge by Experian in its appeal to the FTT was that the EN was an attempt by the Information Commissioner to impose its subjective preferences as if they were legal requirements under the GDPR, and that those subjective preferences were based on a mischaracterisation of Experian’s business and its impact on individuals’ privacy. The result, it was said, would be that Experian would be compelled to adopt an unworkable, purely consent based, model for offline marketing services and this would, if complied with, force Experian to shut down its offline marketing services business. As such it was argued that the Information Commissioner had applied the law incorrectly and/or reached flawed conclusions on the facts. In sum, it was contended that the requirements of the EN were disproportionate and unfair and the notice should be set aside in its entirety. In support of this overarching challenge Experian advanced five more specific grounds of appeal before the FTT.

Experian’s first ground of appeal was essentially an economic argument, namely that effective and efficient marketing was fundamental to the achievement of a successful marketing consumer economy. In this respect it was argued thatExperian’s data processing activities served the interests of data subjects, by ensuring that they received marketing materials which were more likely to be relevant to them, limiting the scope for them to receive irrelevant marketing communications, and in helping to deliver lower prices due to more efficient marketing and competition.

The second ground of appeal was that the Information Commissioner’s assertion that Experian’s processing activities would not be expected by the data subjects and would be likely to cause distress was unevidenced. Furthermore, Experian contended, it was incorrect as it used data from public sources to build statistical models from which attributes could be inferred – it did not process actual data relating to individuals’ behaviour and nor did it track their internet activity.

Experian’s third ground of appeal was that the Information Commissioner had proceeded on the basis of wrong assumptions as to the nature of Experian’s business model (e.g. the false assumption that Experian conducted its business so as to ensure its data processing activities remained invisible).

The fourth ground of appeal before the FTT was that the Information Commissioner’s approach was out of step with the requirements of Article 14 and that it was disproportionate in all the circumstances to require a privacy notice to be sent directly to all data subjects.

Experian’s fifth and final ground of appeal was that the effect of the Information Commissioner’s approach was that its privacy notice would be rendered less and not more meaningful as it would then lack effective, user friendly layering and structuring. Furthermore, it was alleged that Experian and its clients would be hampered in an effort to ensure that financially vulnerable people were not unduly exposed to inappropriate marketing materials. In addition, Experian would need to send communications to data subjects which would be likely to be viewed by them as unnecessary and irritating (if the recipients bothered to read them at all), as well as being environmentally unsound.