[2024] UKUT 105 (AAC)

Lastly in terms of Ground 1, we do not accept that the FTT erred in law in the way that they addressed the reasonable expectations of those whose personal data was used by Experian or that their reasoning displays irrational inconsistency. The first sentence of the FTT’s [142] simply referred to the Information Commissioner’s case. The last sentence indicates that at this stage the FTT had in mind individuals’ subjective reactions to the way in which Experian processed their data. As we have explained when addressing the overarching elements of Ground 1, this is not a relevant contextual consideration. Accordingly, the FTT did not fall into error in finding that this was “not a particularly useful yardstick”. The middle of the paragraph legitimately referred to the FTT’s rejection of Mr Hulme’s evidence in this respect. At [165] of their decision, the FTT correctly drew a distinction between the subjective surprise that some users might experience and their reasonable expectations, noting that it was the latter that was in issue. Thus, in setting out their conclusion at [177] we consider that the FTT was referring to its assessment of those reasonable expectations when they acknowledged that, “the scale of the processing undertaken is very large, and that is something which would be surprising to data subjects as indeed would be the uses to which that data is put”. Read in this way we do not consider that there is significant inconsistency between the passages that Mr Pitt-Payne highlighted, albeit this is another respect in which the FTT’s decision could certainly have been better expressed.

It follows from our analysis that the FTT did proceed on the basis that Experian’s processing went beyond the reasonable expectations of the data subjects, when they assessed whether transparency requirements had been met. Nonetheless they found (as it was open to them to do so) that the transparency requirements were met in this instance.

Furthermore, insofar as there is any tension or inconsistency between [142] and [177] of the FTT’s reasoning (contrary to our primary conclusion), it is evident from the structure of the decision and their reasoning, that it was the latter that informed their conclusion on transparency. Accordingly, the FTT did not find that Experian’s data processing was not objectively surprising to data subjects and thus the perversity complaint falls away.