ICO, Clearview AI and Tribunal delays

[reposted from LinkedIn]

On 28 October the Information Commissioner’s Office (ICO) made the following statement in respect of the November 2023 judgment of the First Tier Tribunal upholding Clearview AI’s successful appeal of the ICO’s £7.5m fine, and posted it in an update to its original announcement about appealing:

The Commissioner has renewed his application for permission to appeal the First-tier Tribunal’s judgment to the Upper Tribunal, having now received notification that the FTT refused permission of the application filed in November 2023.

It is extraordinary that it has taken 11 months to get to this point.

So what does this mean?

If a party (here, the ICO) wishes to appeal a judgment by the First Tier Tribunal (FTT) to the next level Upper Tribunal (UT), they must first make an application to the FTT itself, which must decide “as soon as practicable” whether to grant permission to appeal its own judgment (rules 42 and 43 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009).

If the FTT refuses permission to appeal (as has happened here), the application may be “renewed” (i.e. made again) directly to the UT itself (rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

So, here, after 11 months (“as soon as reasonably practicable”?) the ICO has just had its initial application refused, and is now going to make an applicant under rule 21(2) of the UT Rules.

The ICO’s wording in its statement is slightly odd though: it talks of “having now received notification” that the FTT “refused” (not, say, “has now refused”) the November 2023 application. The tense used half implies that the refusal happened at the time and they’ve only just been told. If so, something must have gone badly wrong at the Tribunal.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.