[2025] UKUT 319 (AAC)

The appeal against the FTT’s decision that the ICO lacked jurisdiction to issue the Notices is allowed. That decision was materially in error of law and we set it aside. On a proper construction of the GDPRs the ICO had jurisdiction to issue the Notices.

As we have found at [186] to [195] and [216] to [219] above, Clearview’s processing is not outside the material scope of the GDPR, either by virtue of Article 2(2)(a) or by the application of private international law comity principles, and the FTT erred in concluding that it was.

We have also affirmed the FTT’s conclusion that Clearview’s processing is within the territorial scope of the GDPRs. We have reached the latter conclusion on two alternative bases. First, that the FTT erred in concluding that Clearview’s own processing did not amount to “behavioural monitoring”: see [256] to [275] and [315] to [320] above. Second, because the FTT was correct to find that Clearview’s processing was “related to” behavioural monitoring undertaken by its clients within the meaning of Article 3(2)(b) GDPR, albeit that our reasoning differs from the FTT’s reasons in a number of respects: see [242] to [255] and [328] to [330] above.

We therefore remit this matter to a new FTT for consideration of the substantive appeal in accordance with our Directions.