[2024] UKUT 105 (AAC)

Before discussing the grounds of appeal individually, we will provide a short encapsulation of the parties’ overarching submissions i.e. those that seem to us to permeate many, if not all, of the grounds. Counsel’s detailed submissions on the specific grounds will be summarised (insofar as is necessary to explain the reasons for our decision) in our consideration of each of the grounds, below.

In essence, the Information Commissioner argued that the FTT had misapplied the transparency principle in the GDPR, and so had erred in law, materially; whereas Experian argued that the Information Commissioner’s complaints were really with the FTT’s factual findings and evaluative judgements about Experian’s processing, which, on the authorities, could not be disturbed on appeal; and that the FTT had not erred in applying the transparency principle in the GDPR to the facts as it found them.

The “field of battle” as regards the transparency principle in the GDPR was not whether the CIP contained all the information required by Article 14 (it was agreed that by the time of the hearing below it did so, and that the FTT had so found); rather, it was whether that principle was satisfied by

The Information Commissioner argued that the FTT had misapplied the transparency principle by over-focusing on the (benign) consequences to data subjects of Experian’s processing of their personal data; whereas the true focus should have been on the rights and protections afforded to data subjects under the GDPR and the expectations that data subjects would have in this particular context. Transparency in the GDPR, argued the Information Commissioner, is a foundational principle intended to enable data subjects to make their own judgment as to whether or not they consider processing of their personal data is innocuous or objectionable in some manner, and therefore whether they wish to exercise the rights the GDPR provides to them. The Information Commissioner argued that the FTT failed to appreciate or engage with the significance of the overarching Article 5(1)(a) transparency obligation, erred by failing to determine key issues and, in substance, treating Experian’s failures in transparency as being of no account (or to not amount to failures), because of the FTT’s own view as to the innocuous nature of the processing.

Experian, on the other hand, submitted that the FTT’s decision rightly turned on the question of whether Experian’s processing was significantly privacy-intrusive or otherwise likely to be harmful to data subjects in practice. Experian argued that the difficulty for the Information Commissioner in this appeal was that the FTT had not been persuaded of these factual points on the evidence before it. The poor showing of the Information Commissioner’s main witness, Mr Hulme, at the FTT hearing was an essential facet of this.

Experian argued that the effect of processing the personal data affected the strictness of the transparency standard to be applied. The transparency principle is context-dependent and must be applied in a way that is proportionate to the facts of the case. The FTT was required to take the broad, undefined concept of transparency and apply it to the facts of the case before it, doing so in a manner which recognised that the transparency standards set by the GDPR are context-dependent.

Consonant with the Information Commissioner’s position that the FTT had misapplied the transparency principle in the GDPR, the Information Commissioner submitted that the appeal was not, primarily, a “reasons” challenge (i.e. based on inadequacy of reasons in the FTT’s decision), although this was argued in the alternative. On the other hand Experian argued that, at heart, the appeal was a reasons challenge and that the answer to the Information Commissioner’s criticisms of the FTTs decision was that, on the authorities, any perceived gaps in the FTT’s reasoning could, and indeed must, be filled by inference drawn from the decision as a whole. Experian accepted that the FTT decision was not “the most perfectly articulated set of reasons”; and that there were “infelicities” in the reasoning. However, it submitted that the question for the Upper Tribunal is whether, standing back from the detail, it is nonetheless possible to discern the core thrust of the FTT’s reasoning on the core issues. Experian submitted that it was.