Yesterday I wrote about the decision, published last week, of the First-tier Tribunal in relation to a preliminary issue raised in TikTok’s appeal against the penalty notice issued by the Information Commissioner in 2023. In yesterday’s blog post I looked at two of the four matters that the Tribunal decided it required to determine as part of the preliminary issue. In this post, I look at the remaining two, namely (a) the Special Purposes Issue and (b) the Consequences Issue.

Special Purposes Issue

The Tribunal deals with this issue at [131]-[155] of its decision. In this part of its decision, the Tribunal considers whether the processing with respect to which the penalty was issued by the Commissioner was for the special purposes.

The Tribunal had heard evidence from three witnesses. First from James Stafford who is the Global Head of Content for TikTok. The Tribunal summaries his evidence to the Tribunal at [23]-[30] of its decision. Second from Professor Catherine Abell, who is Professor of Philosophy of Art and Fellow of Queen’s College, Oxford. The Tribunal summaries the evidence of Professor Abell at [31]-[40]. Both of these witnesses were called by TikTok. The third witness was Professor Jan Krämer, Professor of Information Systems at the University of Passau, Germany. The Tribunal summarises Professor Krämer’s evidence at [41]-[45] of its decision.

The Tribunal accepted that a broad approach required to be adopted to what is meant by the special purposes, one of which is artistic purpose. [132] TikTok accepted that not all forms of creative endeavour would qualify as being artistic in nature for the purposes of section 174(1) of the Data Protection Act 2018 (DPA2018). [134] It argued that the real question for the Tribunal in this case was how that threshold fell to be identified or characterised and it drew upon principles from copyright law for its argument. [134] TikTok argued that these principles should apply because they reflected an approach which was based on common-sense, properly recognised the limits of the court’s competence and reflected the principles approved in Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy (Case C-73/07) that a wide and flexible approach is to be applied in respect of special purpose concepts. TikTok further argued that the opinion of Professor Abell should carry considerable weight. She had considered that 48 of 100 videos reviewed by her on TikTok were artistic.

In relation to the evidence of Professor Abell, it was argued on behalf of the Commissioner that her report did not go to any point that was in dispute before the Tribunal. In particular, it said nothing about how, or for what purpose, personal data with which the penalty was concerned was actually processed by TikTok. The Commissioner invited the Tribunal to afford Professor Abell’s opinion very little weight in the context of the preliminary issue.

The Tribunal agreed with the Commissioner’s submission that the question before the Tribunal, in this context, was not whether content posted on TikTok is artistic in nature. [137] The Tribunal stated at [137]:

Whilst the fact that content is artistic may indicate the possibility that there may be some sort of processing for an artistic purpose going on, the Tribunal’s task is to determine whether the specific processing which is the subject of the MPN was for the special purposes. The presence of some artistic content is not enough by itself to replace the need to carry out this task.

TikTok also argued that its service was one that provided a free expression service; in particular, it acted as an online intermediary service enabling tens of millions of people to exercise their free speech rights on the internet. It argued that its service was firmly and deliberately orientated towards the creative and artistic; this was in contrast to other ISPs (such as Google) which operated in a content neutral way. TikTok argued that it sought to encourage its users to create, share and consume content that is “inherently creative” and artistic. TikTok also sought to argue that it differed fundamentally from other video-sharing platforms such as YouTube. TikTok accepted that it had to meet, for the purposes of the special purposes test, something more than a vague connection with the special purposes and argued that it did so.

For the Commissioner it was argued that the processing undertaken by TikTok for the purposes of delivering targeted advertising to underage children was not processing for the purposes of journalism, or academic, artistic or literary purposes. It was contended by the Commissioner that processing by TikTok for the purposes of monetising its user base and delivering targeted advertising had no journalist or artistic purpose, it was only for a commercial purpose. The Commissioner also argued that processing by TikTok for the purpose of attempting to prevent underage children from accessing its service or for detecting and removing any underage children on its service was not processing for the special purposes; it was for the purpose of preventing underage children from gaining access to and using its platform.

The Tribunal was ultimately persuaded by the arguments advanced on behalf of the Commissioner “that by definition TikTok’s purpose in processing the data of those Underage Children cannot be to facilitate their use of its platform for any purposes at all, including any special purposes.” [152] The Tribunal concluded “that TikTok’s processing in relation to Underage Children, which was the processing with respect to which the MPN was issued, was not for the special purposes.” [153] The Tribunal stated, at [155]:

We therefore conclude that the processing of personal data by TikTok in respect of which the MPN was made was not for the special purposes. Accordingly, the IC was not required to obtain leave from a court under section 156 before issuing the MPN and the MPN was not issued ultra vires. This is because the MPN concerns – and was given “with respect to” (the language of section 156 DPA) – specific processing of data by TikTok that was not “for the special purposes”.

Comment on Special Purposes Issue

TikTok comprehensively lost on this issue, which was not unexpected in light of the Tribunal’s conclusions in relation to the first two issues. Although I was somewhat critical of the strength of one of the Tribunal’s reasons in relation to the “Processing Issue”; I do not think that criticism is in any way material to the overall conclusions of the Tribunal. The Tribunal does not seem to have been the least bit persuaded that the processing with which the penalty notice was concerned was in a deliberate or intentional way processing for the special purposes.

Consequences Issue

The Tribunal deals with this issue at [156]-[164] of its decision. This issue is fairly straightforward and is really secondary to the first three issues in light of the Tribunal’s decision. In essence, the consequence of the Tribunal’s decision is, subject to any appeal by TikTok against this decision, that the entire penalty notice falls to be determined by way of a substantive hearing. [156] The Tribunal held that because it had determined that the processing in respect of which the Commissioner had issued the penalty notice was not for one or more of the special purposes, the Commissioner did not need to follow the procedure set out in section 156 of the DPA2018 before issuing the penalty. [157]

TikTok had raised concerns in its written and oral submissions to the Tribunal about the Commissioner’s findings in the penalty notice on the targeted advertising processing, in particular that they had not been fully set out in the Notice of Intent which the Commissioner was required to issue before issuing the penalty. The Tribunal doesn’t appear to have been particularly persuaded by those concerns. It stated, at [160]:

It is frequently the case that an enforcement case brought by a regulator will evolve during the various stages of the case from how it was initially raised with the subject, often reflecting representations made by the subject. Any procedural unfairness (such as that flowing from Article 6 ECHR) which arises when the formulation of the regulator’s case changes from how it was pleaded at an earlier stage of the process (here the NOI) can be corrected by the statutory right to challenge the later iteration of the case (the MPN) by way of appeal and make representations in that context.

 Under reference to the Court of Appeal’s judgment in Financial Conduct Authority v BlueCrest Capital Management (UK) LLP the Tribunal stated that in its view the targeted advertising “has a real and significant connection with the subject matter of the MPN and therefore of the appeal.” [163] The Tribunal went on to state, at [163]:

The statutory appeals process gives an opportunity for TikTok to challenge the MPN as it stands, irrespective of what was in the earlier notice. We therefore do not accept that it would be unfair to allow the IC to rely on an MPN which has evolved out of a differently framed NOI, because the current appeal process allows TikTok to make any representations it wishes relating to the MPN, so there is no procedural unfairness.

The Tribunal concluded that it did not “accept TikTok’s argument that the IC should not be allowed to rely on the allegations around targeted advertising set out in the MPN.” [164]

Conclusion

The Tribunal having disposed of the preliminary issue and determined it wholly in favour of the Commissioner it can now, in theory, move on to deal with TikTok’s substantive appeal against the penalty issued by the Commissioner. While this was a lengthy decision, it should not be taken to mean that the Commissioner will ultimately be successful in resisting the substantive appeal by TikTok; this decision was, ultimately, about whether the penalty notice was valid or whether it was invalid because the Commissioner should have followed the procedure set out in section 156 but had not done so.

As noted earlier in this post, and my one from yesterday, TikTok could seek leave to appeal to the Upper Tribunal against the First-tier Tribunal’s decision. These are weighty issues of significant importance, not only for the operation of the Commissioner’s regulatory powers but for the basic operation of data protection law in relation to special purpose processing. I would not at all be surprised if TikTok seeks permission to appeal to the Upper Tribunal against this decision and nor would I be surprised if the issues ultimately ended up before the Supreme Court – there is, of course a long way to go before the parties reach there with lots of potential twists along the way.

In short, I do not think we will be getting a decision on the substantive appeal against the penalty anytime soon and this appeal will certainly outlive both the office of Information Commissioner and its current incumbent (in the sense that he will have long demitted office by the time these issues are finally resolved).

^{_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}}