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Upper Tribunal agrees with Privacy International on extra-territorial reach of the GDPR

08/10/25

Yesterday the Upper Tribunal (Mrs Justice Heather Williams DBE and Upper Tribunal Judges Church and Butler) handed down judgment in The Information Commissioner v Clearview AI Incorporated [2025] UKUT 319 (AAC).

Clearview AI is a US-domiciled tech company which operates a global facial recognition database. The technology uses crawlers to scrape the public-facing internet for billions of images of human faces. These images are mapped using facial vectors and stored in a searchable database with relevant metadata to identify people from their images. Clearview sells access to its database to foreign states for national security and law enforcement purposes.

In May 2022, the Information Commissioner sought to impose a penalty on Clearview for alleged breaches of the GDPR. In response, Clearview appealed to the First Tier Tribunal and argued that the Information Commissioner had no jurisdiction over it.

In October 2023, the First Tier Tribunal found in favour of Clearview. Even though Clearview’s activities came within the territorial scope of Article 3, they were outside the material scope of Article 2 of the GDPR. This was because the national security and law enforcement activities of Clearview’s foreign state clients were outside the material scope of the GDPR.

In January 2025, the Information Commissioner was granted permission to appeal, and in April 2025, Privacy International was granted permission to intervene in the appeal.

On appeal, the Upper Tribunal overturned the First Tier Tribunal’s decision, and in doing so it agreed with Privacy International’s submissions as to the proper interpretation of the GDPR. In short, Clearview’s activities were within the territorial scope of Article 3 and not excluded by the provisions on material scope in Article 2. Nor could Clearview avail of general principles of comity or state immunity to avoid the application of the GDPR. See paragraphs 129-130, 179-196.

The judgment is available here.

Marie Demetriou KC and Aarushi Sahore acted for Privacy International (instructed by AWO).

All members of Brick Court Chambers are self employed barristers. Any views expressed are those of the individual barristers and not of Brick Court Chambers as a whole.