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REASONS FOR DECISION
REASONS FOR DECISION
The structure of this decision is:
A summary of the relevant factual background 6
The scope of the appeal - admitting the additional reasons arguments for consideration 22
Permitting Privacy International to intervene in the appeal 22
Permitting Clearview to rely on a written reply to Privacy International’s skeleton argument 23
Reliance on the evidence filed by Privacy International 23
Reliance on legal arguments not raised before the FTT 24
The Upper Tribunal’s approach on an appeal against a FTT decision 24
Relevant legislative provisions 25
The Treaty on European Union 25
The Law Enforcement Directive 31
State immunity and foreign act of state 32
Material scope: the caselaw 34
Territorial scope: the caselaw 39
The Travaux in respect of the GDPR 42
The burden of proof in appeals against ICO Notices 47
Article 2(2)(a) GDPR: material scope 48
The parties’ positions on material scope in brief 48
What the FTT decided in relation to Article 2(2)(a) 49
General approach to construction of the GDPRs 52
Domestic authorities on comity, extra-territoriality and utility 52
EU authorities on extra-territorial effect and comity 54
Certainty and foreseeability 56
EU law authorities on the construction of Article 2(2)(a) of the GDPR 57
Our construction of Article 2(2)(a) 58
Analysis of Clearview’s proposed intersectional construction 60
Alternative analysis based on the ICO’s construction 63
Would regulation of Clearview’s data processing breach comity principles? 63
Article 3(2)(b) GDPR: territorial scope 64
Our approach to the construction of Article 3(2)(b) 64
What was the policy objective behind Article 3(2)(b)? 66
The meaning of “related to” in Article 3(2)(b) 68
The meaning of “behavioural monitoring” in Article 3(2)(b) 70
- Heading
- The decision of the Upper Tribunal is to allow the appeal The decision of the First-tier Tribunal made on 17 October 2023 was materially in error of law. It is SET ASIDE under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (“TCEA
- REASONS FOR DECISION
- Introduction
- The decision under appeal
- A summary of the relevant factual background
- The FTT’s decision
- The FTT’s findings of fact
- The FTT’s conclusions
- The issues in this appeal
- Appeal ground 1
- Appeal ground 2
- Appeal ground 4
- Additional Reason 1
- The scope of the appeal - admitting the additional reasons arguments for consideration
- Permitting Privacy International to intervene in the appeal
- Permitting Clearview to rely on a written reply to Privacy International’s skeleton argument
- Reliance on the evidence filed by Privacy International
- Reliance on legal arguments not raised before the FTT
- Legal framework
- Relevant legislative provisions
- The GDPR
- The UK GDPR
- “Article 2 This Regulation applies to the automated or structured processing of personal data, including
- 1A. This Regulation also applies to the manual unstructured processing of personal data held by an FOI public authority This Regulation does not apply to
- “Article 3
- The 95 Directive
- The Law Enforcement Directive
- State immunity and foreign act of state
- Material scope: the caselaw
- Territorial scope: the caselaw
- The Travaux in respect of the GDPR
- The EDPB Guidelines
- Data subjects in the Union
- The burden of proof in appeals against ICO Notices
- Analysis
- The parties’ positions on material scope in brief
- What the FTT decided in relation to Article 2(2)(a)
- General approach to construction of the GDPRs
- Domestic authorities on comity, extra-territoriality and utility
- EU authorities on extra-territorial effect and comity
- Certainty and foreseeability
- Proportionality
- EU law authorities on the construction of Article 2(2)(a) of the GDPR
- Relevant comity principles
- Our construction of Article 2(2)(a)
- Analysis of Clearview’s proposed intersectional construction
- Alternative analysis based on the ICO’s construction
- Would regulation of Clearview’s data processing breach comity principles?
- Article 3(2)(b) GDPR: territorial scope
- What was the policy objective behind Article 3(2)(b)?
- The meaning of “related to” in Article 3(2)(b)
- The meaning of “behavioural monitoring” in Article 3(2)(b)
- Ground 1
- Ground 2
- Ground 3
- Ground 4
- Clearview’s Additional Reasons
- Additional Reason 1
- Additional Reason 2
- Additional Reason 3
- Additional Reason 4
- Conclusions