[2025] UKUT 319 (AAC)

Because we are tasked with deciding whether the FTT erred materially in law in deciding that Clearview and its private sector contractor clients fell outside the material scope of regulation under Article 2(2)(a), it is necessary for us to seek to understand how the FTT interpreted and applied Article 2(2)(a) GDPR. We have set out the FTT’s reasoning in full at [17] above.

Unfortunately, the reasons the FTT gave for its decision-making on material scope are very sparse indeed. The ICO and Clearview interpret them very differently.

Mr Pitt-Payne submitted that the FTT’s decision that Clearview's own processing was excluded from material scope under Article 2(2)(a) proceeded on one of two possible bases:

Mr Pitt-Payne maintained there was no basis in law for either.

Ms Proops accepted that, had the FTT reached its decision on either of the bases suggested by Mr Pitt-Payne, it would have erred in law. However, she says it is tolerably clear from the FTT’s decision, when read as a whole, that it fell into no such error.

Rather, having made an unequivocal finding based on unchallenged evidence (expressed at [26(a)] and [146] of the FTT’s decision) that all of Clearview’s clients “carry out criminal law enforcement and/or national security functions, and use the Service in furtherance of those functions”, the FTT decided that Clearview’s own processing in delivering the Service intersected sufficiently with its clients’ state functions that it could properly be concluded that Clearview’s processing was done “in the course of” its clients’ out of scope state functions and was therefore excluded from material scope under Article 2(2)(a).

Ms Proops argued, in other words, that the FTT adopted precisely the intersectional construction that she commended to us at the Upper Tribunal hearing.

At [154] of its decision, the FTT states that it has concluded that Clearview’s processing activities are outside material scope by virtue of Article 2(2)(a). It says it has done so “for all these reasons”. This encouraging phrase suggests that the conclusion must be preceded, or possibly followed, by an articulation of at least the principal reasons for that conclusion. However, a thorough search of the 153 paragraphs that precede it, and the five that follow it,reveals scant reasoning on this central issue in the appeal, including an absence of any analysis of the meaning of the wording of Article 2(2)(a) (“in the course of an activity which falls outside the scope of Union law”) or any reference to the caselaw of the CJEU where this has been considered.

At the hearing we invited Ms Proops to identify the reasons to which [154] refers. She took us to the finding in [146] to which we have already referred in [139] above. She pointed out that in [146] of its decision, the FTT rejected the ICO’s suggestion that Clearview’s clients used the Service for purposes other than the discharge of state functions. She said this was “another reason” that the FTT relied on in coming to its conclusion. She pointed further to the FTT’s rejection of the ICO’s argument that Clearview might offer the Service to commercial clients in future, which the FTT said was irrelevant to the application of Article 2(2)(a) (see [147] to [148] of the FTT’s decision). Ms Proops said the conclusion in [154] that Clearview’s processing “was in the course of an activity which … fell outside the scope of EU law”was grounded in this “cumulative reasoning”.

Ms Proops submitted further that the FTT’s conclusion could not have been reached on either of the bases suggested by Mr Pitt-Payne because its decision contained no reasoning to that effect. Ms Proops commented that this was unsurprising, both because no such argument had been put to the FTT, and because any such argument would have been wholly misconceived.

We are unpersuaded that there is any “cumulative reasoning” to support the FTT’s conclusion as to the applicability of Article 2(2)(a) to Clearview. Its rejection of the ICO’s claim that Clearview’s clients use the Service for purposes other than discharging their criminal law enforcement and/or national security functions does not amount to a reason for its conclusion: it is just another way of expressing the finding it had already made that Clearview’s clients use the Service “exclusively in furtherance of” state functions. There is no accumulation of reasoning. Neither does the FTT’s rejection of the ICO’s speculative submission about the possibility of Clearview offering the Service to commercial clients in the future add to the reasons. It merely clarifies one aspect that the FTT did not consider it should take into account.

So, we are left only with the finding that Clearview’s clients use the Service “exclusively in furtherance of” their criminal law enforcement and/or national security functions. That finding, which is itself unexplained, provides a potential foundation for the FTT’s conclusion that the processing of personal data by Clearview’s clients was “in the course of an activity which … fell outside the scope of Union law”, but it does not explain how or why it concluded that Clearview’s own processing was not caught. In the absence of such an explanation, the “conclusion” in [154] of the FTT’s decision is a non sequitur.

Ms Proops argued that application of the intersectional construction should be inferred because the FTT provided no analysis on the lines of either of Mr Pitt-Payne’s proposed rationalisations for its conclusion in [154]. However, the same observation can be made of the FTT’s decision regarding the construction suggested by Ms Proops: the decision provides no analysis that even hints that it might have adopted an intersectional construction either. Ms Proops conceded that the case she put to us on intersectional construction was not the case that Clearview argued before the FTT. Indeed, she conceded that Clearview’s case on jurisdiction before the FTT was firmly based on Clearview falling outside territorial scope under Article 3(2)(b), rather than it being excluded from material scope under Article 2(2)(a). This further weakens the case for inferring that the FTT applied an intersectional construction in reaching its decision and we reject this suggestion.

In summary, the FTT set out its conclusion on the application of Article 2(2)(a) but did not provide reasons that are adequate to explain how or why it reached that key conclusion. That failure itself amounts to an error of law, albeit not one that the ICO pursued as a standalone ground.

So, where does that leave us in terms of the ICO’s appeal Grounds 1 and 2? To decide whether the FTT’s error of law was material, we must construe Article 2(2)(a) for ourselves and decide whether the FTT’s conclusion accords with our construction.

The ICO’s Grounds 3 and 4 and Clearview’s Additional Reasons 1, 2, 3 and 4 concern the provisions on territorial scope, which was the focus of the proceedings before the FTT. The FTT gave a detailed explanation of its interpretation and application of Article 3(2)(b) of the GDPRs at [115] to [144] of its decision. The ICO’s Grounds 3 and 4 and Clearview’s Additional Reasons 1 to 4 require us to construe Article 3(2)(b) GDPR and UK GDPR and to decide whether the FTT erred in its interpretation or application in a way that was material.

We now turn to the law on the approach that we must take to construing the GDPRs before explaining how we construe those provisions.