Clearview wins its appeal against the ICO at the First Tier Tribunal

The First Tier Tribunal concluded that the ICO, which issued a fine of £7.5 million on Clearview (CV) in May 2022, did not have the jurisdiction to take enforcement action against the company which it did in the form of an Enforcement Notice and a Monetary Penalty Notice.

Clearview was successful in its appeal against the ICO as its data collected in the UK was used solely by law enforcement bodies outside the United Kingdom or the European Union. The activities of foreign governments fall outside the scope of EU law, and UK data protection law.

The Information Commissioner had stated that Clearview is responsible for processing by its clients because of the “very close relationship” between Clearview’s activities and those of its clients who are conducting the behavioural monitoring.

The Tribunal says: “We agree that the monitoring in this case is being done to identify a person but that is not the sole reason. CV’s clients use the Service to try to find out not only who a person is, but also with a view to taking decisions about them, predicting or analysing the person’s behaviour in order to apprehend them/gather evidence about what they have done to prevent illegal activity.”

An ICO spokesperson said: “The ICO will take stock of today’s judgment and carefully consider next steps. It is important to note that this judgment does not remove the ICO’s ability to act against companies based internationally who process data of people in the UK, particularly businesses scraping data of people in the UK, and instead covers a specific exemption around foreign law enforcement.”

The context for this case is Clearview’s scraping from the Internet of 20+ billion facial images with metadata, such as related social media data, without the knowledge of the data subjects.

Anya Proops KC, Christopher Knight and Raphael Hogarth of 11KBW acted for Clearview AI, instructed by Jenner and Block London LLP, while Timothy Pitt-Payne KC and Jamie Susskind of 11KBW acted for the Information Commissioner.

See the 35 page decision of 17 October.

We will report on the implications of this decision for data scraping in Privacy Laws & Business UK Report.