The Upper Tribunal (UT) has handed down a judgment which considers the meaning of the so-called ‘special purposes’ regime under data protection law, particular in the context of processing by social media companies.
Whilst principally focused on a procedural point, the judgment provides important clarification of what it means for an organisation to process personal data for artistic, literary, academic or journalistic purposes so as to fall within the ‘special purposes’ regime, something of relevance to any organisation wishing to rely on the protections afforded by the regime to support freedom of expression (including the so-called ‘journalism exemption’).
In the case of social media platforms, the judgment makes clear that the mere fact that a platform may host or encourage the creation of artistic material by its users does not mean that it is itself processing personal data for an artistic purpose, particularly where its recommender system is indifferent to the nature of the content generated by users.
Background
The case concerned a £12.7 million monetary penalty notice (MPN) issued in 2023 by the Information Commissioner’s Office (ICO) to TikTok (discussed here) for various breaches of the UK GDPR relating to the processing of personal data of children who used its platform.
TikTok challenged the MPN on several grounds, including that it was ultra vires under section 156 of the Data Protection Act 2018 (DPA), which provides that the ICO may not issue an MPN with respect to the processing of personal data for the ‘special purposes’ – namely journalistic, academic, artistic or literary purposes – unless a determination under section 174 DPA has taken effect and the court has granted leave for the notice to be given.
TikTok argued that its processing of the children’s personal data was for artistic purposes and therefore fell within the special purposes regime. Accordingly, because the ICO had not satisfied the preconditions in section 156 DPA, TikTok argued that the MPN was ultra vires.
The First-Tier Tribunal
The First-Tier Tribunal (FTT) ordered that the question of the proper scope of section 156 DPA be determined by way of a trial of a preliminary issue.
The judgment, delivered last year, considered the legislative history and intent behind the special purposes provisions, as well as whether the processing by TikTok was indeed done ‘for the special purposes’ (complete with discussion of evidence from a Professor of Philosophy of Art on whether the content on TikTok might constitute art).
For the FTT, discussions about ‘what is art’ were of limited importance, given that it was concerned with a separate matter under the statute, namely the purposes for which the personal data was being processed. As the Tribunal explained, “it is perfectly possible to take a broad view of what journalistic or artistic purposes means…and still be narrowly focused on whether the processing in question was for those purposes”.
Ultimately, the FTT was satisfied that the processing was not for the special purposes. In relation specifically to children under the age of 13, there was an additional difficulty for TikTok: given that they were prohibited from using the platform, TikTok’s purpose in processing their data could not have been to facilitate their use of the platform for the special purposes.
The Upper Tribunal
TikTok appealed to the Upper Tribunal on a number of grounds, including the proper interpretation of s.156 DPA.
In its judgment, the UT explained that in determining whether the processing was done for the special purposes, one cannot ignore the “element of ‘intention’ connoted by the word ‘for’”. As it explained:
“However TikTok might see itself, and whatever its mission statement (to “inspire creativity and bring joy”) or aspirations might be, the relevant “purpose” for section 156 DPA 2018 is the purpose of the processing itself, not the broader aspirations or values of the controller. To fall within section 156 DPA 2018 it is not sufficient that the processing facilitates, or is associated with, the dissemination of material that itself has special purposes characteristics. Processing is “for the special purposes” only where the purpose of the relevant processing is itself journalistic, academic, artistic or literary”.
Dismissing TikTok’s appeal, the UT held that TikTok’s purpose in processing users’ data in the delivery of its service was to “publish users’ video content to the platform and to distribute it to users whom the algorithm predicts are likely to engage with it”. Importantly, neither of those purposes had anything to do with the nature of the content itself, whether artistic or otherwise. Instead, TikTok’s system distributed content according to the algorithm’s prediction of the likelihood that a particular user would engage with it.
Accordingly, the Tribunal went on to explain that “even when the system shares a video that is artistic or has artistic features it cannot do so for an artistic purpose because it is unaware of, and indifferent to, the artistic character of what it is sharing. TikTok is not therefore processing “for the special purposes” (even as a subsidiary purpose), even if much of the content hosted on the app is itself artistic”.
The decision does not, however, bring TikTok’s challenge to the MPN to an end. The case will now return to the FTT for the remaining substantive grounds of TikTok’s appeal to be determined.
To read the judgment in full, click here.