[2025] UKUT 319 (AAC)

As discussed in [62] to [71] above, the law provides for immunity applying not only to states but also to “separate entities”, which may be private companies.

However, we have been directed to no specific authority for the proposition that any species of comity principle extends more generally to provide immunity to a private company providing a service to a state body, even in the course of “quintessentially state activities” such as national security or criminal law enforcement, where those services are provided independently on a commercial basis, and not as a servant or agent of the state, or otherwise in exercise of sovereign authority. While Ms Proops placed some emphasis upon the Court of Appeal’s decision in Koo, in that decision, state immunity was found to apply on the basis of an agency relationship between the bullion bank and the central bank, as we explained earlier. The case affords no support for the proposition that state immunity may apply to a private company that is neither the servant, nor the agent, of the body with sovereign authority. Insofar as Ms Proops also drew attention to Lord Sumption’s reference in Belhaj to this being a “subject matter immunity”, we have explained the context in which this was said at [65] above.

Ms Proops disavowed any suggestion that Clearview was itself carrying out state activities, that it should be treated as if it were a state body, or that it should be considered to be “standing in the shoes” of its clients. Neither did she claim Clearview to be the servant or agent of its foreign state clients. Indeed, the way Ms Proops put Clearview’s case on whether its processing was “related to” behavioural monitoring by its clients for the purposes of Article 3, placed substantial emphasis on Clearview’s independence from its clients.

Rather, Ms Proops argued Clearview’s case on the basis of her intersectional construction of Article 2(2)(a). She reasoned that this was intended to exclude operators in situations like Clearview’s from the scope of regulation out of an abundance of respect for comity principles, rather than because public international law demands it. As explained above, we reject that intersectional construction.