[2025] UKUT 319 (AAC)

Clearview’s Additional Reason 3 raises the issue whether Clearview’s clients monitor the behaviour of UK data subjects, and whether Clearview’s processing is “related to” this.

Clearview contends that, even if we reject its case on Additional Reason 1 (as we do) and we find that Article 3(2)(b) can apply where processing is carried out by one party and behavioural monitoring by another, we should find that the FTT erred in concluding that Article 3(2)(b) applied to the facts of this case.

Ms Proops argued that if Clearview’s processing is treated as “related to” its clients’ behavioural monitoring, this imposes an unfair burden on Clearview and on foreign controllers generally because a foreign controller cannot be expected to know what its clients do, and cannot be expected to know whether its clients are engaged in behavioural monitoring at all, which raises the important issue of legal certainty.

We did not find this argument persuasive. The FTT made extensive findings of fact about the way the Service operates and what the search results may be used for, including findings in relation to specific successful searches of the Clearview database that had been provided to Clearview by its clients (see [49] of the FTT’s decision). We are satisfied there was evidence before the FTT allowing it to make those factual findings (see [316] to [318] above).

Clearview had also adduced considerable evidence before the FTT in the form of the “Lunch and Learn” materials which make clear that Clearview was selling its Service to clients on the basis of its potential as a tool for behavioural monitoring, and not simply as an identification tool. Those materials demonstrate that, while Clearview may not know in any particular case specifically what actions its clients actually take following receipt of search results, it is aware as a general matter of the nature of the use it is being put to, because that is the basis on which it has sold the Service: it is sold as a sophisticated tool designed to assist them with their investigations into national security and/or criminal law enforcement matters.

Ms Proops encouraged us to focus on processing only up until the production of the search results to the client, and not beyond, on the basis that the clients’ subsequent activities were “too remote” or “not sufficiently closely connected”. We can see no justification for such a limited approach, which is artificial and unsupported by authority. Given what Recital 24 and the EDPB Guidelines say, the FTT was clearly entitled to look beyond the Activity 2 processing and to take into account potential subsequent use of the data by Clearview’s clients when assessing whether behavioural monitoring was being conducted.

Ms Proops argued that the words “related to” must be construed on the basis that there must be “the strongest possible connection” between Clearview’s processing and the offending behavioural monitoring. We do not accept that there is any such requirement; it is not reflected in the expansive legislative wording or in any of the other materials that we were taken to. In any event, the FTT found that there was “such a close connection between the creation, maintenance and operation of the Database and the monitoring of behaviour undertaken by the clients that [Clearview]’s processing activities are related to that monitoring” (see [143] and [144] of the FTT’s decision). These were findings the FTT was entitled to make.

We are satisfied the FTT was entitled to find that Clearview’s clients engaged in behavioural monitoring and that Clearview’s processing was “related to” the various forms that its clients’ behavioural monitoring took, for the reasons the FTT gave at [117] to [121], [123] and [126] to [128] of its decision. We therefore dismiss Clearview’s case on Additional Reason 3.