[2024] UKUT 105 (AAC)

Ms Proops acknowledged that the FTT’s reasoning in relation to Article 14 was suboptimal but she submitted that each of the perceived gaps could and should be filled by the necessary process of considering the decision as a whole (in light of the submissions made to the FTT) and drawing the appropriate inferences.

Ms Proops submitted that the FTT had approached the Article 14 issues correctly. She said that as it was quite clear that Experian did not assert that they had met the Article 14(1) duty it was unnecessary for the FTT to make any finding in this respect. She said that it was equally clear that the FTT had not decided the case involving the main cohort of data subjects on the basis of Article 14(5)(b), as there was no consideration in their reasoning of “disproportionate effort”, as there was when they considered the position of the residual cohort at [178]. Accordingly, she said, although the conclusion at [177] was not explicitly couched in the terms of Article 14(5)(a), Article 14(5)(a) was “the only game in town” and it was tolerably clear that the FTT had found that this provision applied as the data subjects already had the information, in light of the simple to follow and accessible route to the CIP.

Ms Proops contended that there was nothing in the first two specific errors. There was no need for the FTT to make a finding in relation to Article 14(1) and not doing so did not impact upon how the FTT approached Article 14(5). Whether the data subjects already “had” the prescribed information or not was simply a binary question, to which no question of a broad or narrow construction arose.

As regards the third specific error, Ms Proops responded that the question of whether the data subject already “has” the prescribed information involved a straightforward, commonsense application of these words. She submitted that the FTT were entitled to find that as data subjects had the opportunity to click on the relevant hyperlinks to take them to the CIP, they “had” the information. Ms Proops reminded us of the concession that Mr Pitt-Payne had made that it was possible for transparency requirements to be met by a series of hyperlinks ([112] above).She said that it was a question of fact for the FTT, who had resolved it in Experian’s favour, finding that an effective delivery mechanism for the information had been employed after weighing up the relevant matters, in particular the accessibility and clarity of the route to the CIP. Whilst the Information Commissioner disagreed with the FTT, there was no perversity challenge to the FTT’s conclusions at [161], [169] or [177] and their evaluative assessment was unassailable.

In terms of the fourth specific error, Ms Proops acknowledged that the FTT did not expressly address the route from the third party suppliers’ websites to the CIP. However, she submitted that it was evident from their stated reasoning, that the FTT had concluded that the hyperlinks route to the CIP from third party suppliers meant that these data subjects also already “had” the prescribed information. She said their finding to this effect was included in the conclusion at [181] in circumstances where it necessarily followed that the FTT’s assessment in respect of the CRA side of things also applied to the third party suppliers route, not least because the latter would involve one hyperlink rather than two (a link on the third party supplier’s website to the CIP, as opposed to a link on the lender’s website to the CRAIN and, in turn, a link to the CIP). Ms Proops said that it was inconceivable that the FTT had simply forgotten about the position in relation to third party suppliers, when it was apparent from the parties’ submissions that this was in issue and the findings of fact showed that the FTT were aware that a substantial amount of data subjects’ personal data was drawn from the third party suppliers. She submitted that the inference we were bound to draw was that after finding that the more indirect CRAIN route met Article 14(5)(a), the FTT considered that it followed that the same conclusion applied to the third party suppliers.

Ms Proops also contended that the FTT had not erred in relation to Article 14(5)(b); it did not arise in relation to the main cohort of data subjects as the FTT had already lawfully held that the Article 14(5)(a) exception applied.