Upper Tribunal draws a firm boundary around special-purposes processing
The Upper Tribunal has dismissed TikTok’s appeal concerning whether the ICO’s £12.7 million penalty notice engaged the special-purposes restrictions in sections 156 and 174 of the Data Protection Act 2018.
TikTok argued that the processing involved in delivering its platform facilitated artistic expression by its users and therefore constituted processing for artistic purposes. If that argument succeeded, the ICO would have needed to satisfy the special procedural conditions governing penalties relating to journalistic, academic, artistic or literary processing.
The Tribunal rejected that construction. It held that it is not enough for processing to facilitate, support or be associated with the dissemination of material that has an artistic or other special-purpose character. The purpose of the particular processing must itself be journalistic, academic, artistic or literary.
That requires controllers to examine the relevant operation closely. A platform may host artistic or journalistic material while separately processing user information for service delivery, recommendations, advertising, age management or governance. The presence of expressive content does not automatically bring those other activities within the special-purposes regime.
The Tribunal also noted that TikTok did not intend children under 13 to use its platform. Its processing of those children’s data could therefore not have been intended to enable their artistic expression. TikTok’s appeal was dismissed and the case has returned to the First-tier Tribunal for determination of the remaining substantive challenge to the penalty.
The reasoning is likely to be important for other platforms and intermediaries seeking to distinguish their own operational processing from processing genuinely undertaken for freedom-of-expression purposes.
For more information, see our course on Children’s Data – Practical Compliance for Organisations.
