[2025] UKUT 319 (AAC)

Clearview’s Additional Reason 1 raises the issue whether Article 3(2)(b) can apply to the processing of a person where that person carries out no behavioural monitoring but their processing is “related to” behavioural monitoring carried out by another person.

Additional Reason 1 can only assist Clearview if we are wrong to have allowed Ground 3 (i.e. we are wrong to have found that Clearview itself engaged in behavioural monitoring).

We have already explained our construction of Article 3(2)(b) in [242] to [255] above.

The FTT gave the words “related to” as they apply to Article 3(2)(b) an expansive meaning, deciding that “nothing within [the GDPR] prevents the processing of data by a controller being “related to” the monitoring of behaviour by another distinct controller” (see [138] of the FTT decision).

The FTT’s reasoning at [138] of its decision indicates that it was under a misapprehension about the facts of Soriano (wrongly believing it to have concerned separate parties conducting the processing and the monitoring). Further, we are not persuaded by the FTT’s reasoning that if Clearview’s narrow interpretation of “related to” were to apply, it would be easy for a party to circumvent Article 3 by delegating its processing and monitoring activities to separate persons to avoid coming within the scope of regulation, because such circumstances would give rise to an agency relationship.

However, while we do not agree with all of the FTT’s reasons for its conclusion at [138] of its decision, we agree with its identification of the “mischief” at which the provision was targeted: it is “the monitoring”, rather than who is doing the monitoring (reflected in the reference to “the monitoring” rather than “their monitoring” in both Recital 24 and in Article 3(2)(b) itself). We agree with the FTT’s conclusion that Article 3(2)(b) applies to processing by one party which itself carries out no behavioural monitoring, provided that its processing is related to behavioural monitoring carried out by another party. We confirm the FTT’s conclusion, albeit for the different reasons explained more fully at [242] to [255] aboveand we therefore dismiss Additional Reason 1.