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Two years ago, back in October 2023, we reported on the FTT’s decision in ClearviewAI’s challenge to a £7.5m monetary penalty notice imposed by the IC in relation to its facial recognition comparison service, offered to non-UK law enforcement/national security clients.
The FTT had found that this processing ‘could have an impact on UK residents even though it is not used by UK customers’, given that it would include images taken in the UK of UK residents. It would fall within the territorial scope of the UK GDPR. But it held that this did not fall in the material scope of the UK GDPR because it concerned the activities of foreign governments. As we observed at the time, ‘Clearview is not a foreign government, though its customers may well be foreign government agencies. It will be interesting to see if the IC mounts an appeal.’
They did, and they succeeded, with the support of an intervention from Privacy International. A strong Upper Tribunal (Heather Williams J sitting with UTJs Church and Butler) affirmed the FTT’s conclusion that ClearviewAI’s processing fell within the territorial scope of the UK GDPR (for the reasons the FTT reached, but for the additional reason, contrary to the FTT’s decision, that it amounted to ‘behavioural monitoring’). It also found that ClearviewAI’s processing was not outside the material scope of the UK GDPR. The material scope exception was to be construed narrowly. Moreover, principles of comity between states do not extend to granting immunity to private bodies providing a service to a state body, even in the course of state activities such as national security or criminal law enforcement. Immunity attaches to acts by servants or agents of the state exercising sovereign authority, not commercial activities.
The case has been remitted to the FTT for a decision on the merits – though it’s by no means impossible that ClearviewAI will seek to take this significant point further. But the fact that it is now almost three and a half years since the original monetary penalty notice was imposed vividly illustrates the challenges of regulating the activities of global tech.
Data Brief on the FTT decision
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
