The Upper Tribunal (UT) has handed down judgment in The Information Commissioner v Clearview AI Incorporated [2025] UKUT 319 (AAC).
Clearview AI is a US-based company which operates a facial recognition search service. Clearview scrapes the public-facing internet for images of human faces, maps them using facial vectors, and stores them in a database searchable by its clients, together with certain associated data and metadata.
In 2022, the Information Commissioner imposed a Monetary Penalty Notice and Enforcement Notice (Notices) on Clearview for alleged breaches of the GDPR and UK GDPR.
Clearview appealed to the First Tier Tribunal (FTT), arguing that the Information Commissioner lacked jurisdiction, as well as challenging the ICO’s Notices on their substance.
The issue of jurisdiction was taken as a preliminary point. In October 2023, the FTT allowed Clearview’s appeal, holding that Clearview’s activities fell within the territorial scope of the GDPR (Article 3), but outside its material scope (Article 2), and that the Information Commissioner therefore lacked jurisdiction to issue the Notices whether under the GDPR or UK GDPR.
In January 2025, the Information Commissioner was granted permission to appeal to the Upper Tribunal (UT). In April 2025, Privacy International was granted permission to intervene.
On appeal, the UT overturned the FTT’s decision, finding that the Information Commissioner did have jurisdiction to issue the Notices. The UT found that Clearview’s processing was within the territorial scope of the GDPR and UK GDPR and that jurisdiction was not excluded by the material scope provisions in Article 2. The UT ordered that the case should be remitted to the FTT to deal with Clearview’s appeal against the substance of the Notices.
Timothy Pitt-Payne KC and Jamie Susskind were instructed by the Information Commissioner, assisted by Jack Steele. Anya Proops KC, Christopher Knight, and Raphael Hogarth acted for Clearview AI, instructed by Jenner & Block London LLP.
