The social media giant has argued that a penalty notice by the UK Information Commissioner’s Office is legally null as it relates to processing for special purposes.
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The Information Commissioner’s Office fined TikTok £12.7 million (€14.5 million) in April 2023. The ICO found that the platform breached the UK GDPR between 2018 and 2020 through the unlawful processing of children’s data and a lack of transparency about how it used the data.
The First-Tier Tribunal today heard arguments with regards to TikTok’s appeal against the fine. The tribunal had ordered the preliminary issues trial to determine whether the ICO’s monetary penalty notice was made in respect to processing of personal data for special purposes – TikTok’s first grounds of appeal.
TikTok counsel Anya Proops KC told the court that the processing TikTok undertook was for special purposes, and in particular, artistic purposes. According to section 156 of the Data Protection Act, the regulator may not give a controller a penalty notice in relation to processing for special purposes unless certain requirements are met.
Proops argued that during the relevant period the company was fundamentally designed to enable and encourage users to express themselves artistically. She noted that TikTok also provided users with tools designed to enable creativity; such unique creative features distinguish TikTok in the intermediary service market, she noted.
As a result, she said that the platform is used in a way that’s “heavily skewed towards artistic expression”. Proops referred to an expert report by Oxford University philosophy of art professor Catharine Abell which found that close to 50% of the top 100 most liked user-generated videos on the platform constitute or represent art.
TikTok’s counsel noted that the ICO’s penalty notice “firmly and centrally” related to the processing of data to deliver services to users. The personal data processing which TikTok undertook in the context of delivering such service was for the special purposes, she said.
The ICO’s counsel Gerry Facenna KC meanwhile said the penalty notice was not made with respect to processing by TikTok for special purposes and instead concerns contraventions related to the transparency of privacy notices and the unlawful processing of personal data of children under the age of 13 on the platform.
Facenna contested TikTok’s claim that the notice was handed down with regards to its processing for service delivery to all users on its platform, saying that it was in reality much more focused than that. He argued that the notice is specific about processing of personal data by Tiktok and aspects of its compliance with the GDPR and DPA.
He said in written arguments that TikTok’s argument “rests on an incorrect and impermissibly wide interpretation” of article 156 of the DPA which would give itself and other similar platforms “a de facto special status” under the regulation. The argument “misreads and misrepresents” the penalty notice by focusing on alleged wider consequences rather than the processing which was the subject of the penalty notice.
Facenna told the court that the case is not about content on TikTok, not whether users exercise freedom of expression and not about whether the content is or is not art.
Counsel to TikTok
11KBW
Anya Proops KC and Zac Sammour
5RB Barristers
Aiden Eardley KC
Counsel to the Information Commissioner’s Office
Monckton Chambers
Gerry Facenna KC, Nikolaus Grubeck and Jenn Lawrence
11KBW
Robin Hopkins