On 31 July, the Upper Tribunal dismissed TikTok’s argument that its processing of personal data was carried out for artistic purposes and provided guidance regarding the interpretation of “for special purposes” in s 156 of the Data Protection Act 2018 (DPA 2018).
The ICO’s fine and TikTok’s appeal
On 4 April 2023, the Information Commissioner’s Office (ICO) fined TikTok £12.7 million for breaches of data protection law relating to the processing of underage children’s personal data.
TikTok appealed to the First-tier Tribunal on several grounds. It argued that at least some of its platform delivery processing was done for artistic purposes, and that the ICO was prohibited from issuing a penalty notice because s 156 of the DPA 2018 applied. Section 156 of the DPA 2018 requires the ICO to fulfil certain preconditions (namely obtaining court approval) before it can issue a penalty notice “with respect to the processing of personal data for the special purposes”, defined in s 174 as journalistic, academic, artistic, or literary purposes. TikTok claimed its data processing was sufficiently “proximate” to users’ artistic expression that it fell within s 156, and that the ICO had acted ultra vires in issuing the MPN without fulfilling the preconditions.
The First-tier Tribunal determined this challenge should be heard as a preliminary issue, but ultimately dismissed it in June 2025. The Upper Tribunal upheld this decision. In doing so, it provided helpful guidance on how s 156 of the DPA 2018 should be interpreted, and interesting commentary on the nature of TikTok’s data processing:
- The Upper Tribunal held that the ordinary meaning of “for the special purposes” applied, and that “for” connotes deliberate intention. It dismissed TikTok’s argument that its processing of personal data to facilitate users’ free expression was sufficiently “proximate” to the special purposes (and that there was sufficient directness of purpose) that its processing could be considered “for” the special purposes defined in s 174.
- The Upper Tribunal dismissed TikTok’s argument that TikTok’s recommender system effectively promoted artistic content because it advantages content made using TikTok’s creation and editing tools, noting that the creation and editing tools can also be used to make non-creative content and the recommender system cannot distinguish between creative and non-creative content. The Upper Tribunal held that “even when the system shares a video that is artistic or has artistic features it cannot do so for an artistic purpose because it is unaware of, and indifferent to, the artistic character of what it is sharing. TikTok is not therefore processing “for special purposes” (even as a subsidiary purpose), even if much of the content hosted on the app is itself artistic.”
Key takeaway
Companies should not assume that s 156 DPA 2018 applies where they process journalistic, academic, artistic, or literary content. In order for s 156 DPA 2018 to apply, the processing of the personal data in question needs to have been conducted directly “for” journalistic, academic, artistic, or literary purposes. If an algorithm is blind to whether content is artistic, it cannot be processing personal data for artistic purposes, even if much of the content being processed is artistic.
If you would like more information, please reach out to one of our lawyers, or if you would like to keep up to date on the latest in data protection, please subscribe to our quarterly newsletter, The Data Download.
