[2024] UKUT 105 (AAC)

Ms Proops contended that the FTT had adequately addressed what the principle of transparency required. Their decision set out the material parts of Articles 5(1), 12 and 14; accurately noted the Information Commissioner’s submission on transparency; and rightly recognised that transparency in the processing of personal data was foundational and that what transparency required was fact-specific and context-related. The FTT then went on to apply that approach to the facts that they had found and it would have been wrong for the FTT to put a gloss on the wording of Article 5(1)(a) by attempting to define what transparency required. Ms Proops pointed out that Mr Pitt-Payne had not been able to identify what it was that the FTT had failed to spell out in terms of the transparency principle. She also submitted that it was apparent from the content of the FTT’s reasoning that it had taken into account Article 5(1)(a), albeit the provision was not referred to in terms when they set out their conclusions. The FTT’s reasoning was compressed, but it showed that they had considered the issue raised by Article 5(1)(a) and had found that the CIP provided the relevant information in an accessible and adequately clear way; and there was no perversity challenge to these findings. Equally, insofar as it was relevant, the FTT had taken into account the data subjects’ reasonable expectations, as the terms of [177] of their decision showed.

Ms Proops characterised the FTT’s finding that the processing was essentially anodyne and their rejection of the Information Commissioner’s case as to its damaging consequences, as leaving the latter’s case “in tatters”. She said that inevitably, and quite properly, this impacted on the way that the FTT approached the issues they had to resolve. Nonetheless, she submitted, the FTT did not simply focus on the lack of harmful impact for the data subjects, as Mr Pitt-Payne suggested; the FTT’s reasoning showed that they had considered the intrinsic nature of the processing, finding that the use of modelled data was less intrusive than if actual data points had been used and making a number of findings about the use that was made of the data and the controls that were operated.

As regards the first alleged specific error, Ms Proops submitted that earlier references to Article 21 opt out rights at [40] and [52] of the FTT’s decision showed that they were aware of this provision and its potential significance. Furthermore, the FTT had considered the CIP as a whole (with the benefit of a detailed presentation of its webpages) and there was a right to opt out button on the first page and on successive pages of the site. Accordingly, the Article 21(2) opt out right must be taken to have been part of the FTT’s contextual assessment that the material was presented in a sufficiently accessible and clear way.

Ms Proops submitted that a concession made by Mr Pitt-Payne during the course of her submissions was fatal to his case on the second alleged error. He had clarified that he did not suggest that a user route consisting of a series of hyperlinks on websites provided by different entities could never satisfy the Article 5(1)(a) transparency principle. Ms Proops submitted that as this was accepted in principle, the question of whether sufficient transparency was achieved by the hyperlinks route in this particular case was a matter for the FTT’s evaluative assessment, and there was no perversity challenge to the conclusions they had reached.

Ms Proops disagreed with Mr Pitt-Payne’s interpretation of the FTT’s reference to most people not caring about their data; the observation at [166] of the decision was simply by way of explaining the low number of visitors to the CIP, the FTT was not suggesting that this was a factor that diluted the extent to which transparency should be provided to data subjects. She also submitted that the Competition and Markets Authority’s (“CMA”) “Online platforms and digital advertising: Market study final report” (1 July 2021) provided the evidential basis for the FTT’s observation.

As regards the fourth specific error, Ms Proops recognised that the FTT’s reasoning could have been expressed more clearly, but she submitted that, read correctly, there was no inconsistency in what the FTT said in the paragraphs that Mr Pitt-Payne had highlighted. Furthermore, whether or not a data subject was surprised by the data processing, or a particular facet of it, was not synonymous with a data subject’s reasonable expectations in relation to the processing and the FTT were right to distinguish between the two. She also submitted that no basis had been shown for the perversity challenge.