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The Upper Tribunal dismissed TikTok's appeal against the ICO's £12.7 million children's data penalty, holding that a machine-learning recommender does not process personal data for artistic purposes merely because the content it ranks may be art
TikTok's defence to a £12.7 million penalty was that its processing was journalistic, academic, artistic or literary, which would have forced the Commissioner through extra statutory gates before fining it. The Tribunal did not need to decide what art is. TikTok's own witness had already accepted that the recommender has no concept of artistic expression.
Bottom line: Appeal dismissed. The processing covered by the penalty notice was not 'for' the special purposes, the section 156 preconditions did not apply, and the notice was not ultra vires. The case returns to the First-tier Tribunal for all other outstanding issues.
Who this affects: Platforms operating recommender or ranking systems in the UK, data protection officers and privacy counsel relying on freedom-of-expression carve-outs, and anyone arguing that algorithmic processing inherits the character of the content it handles.
Issue date: Heard 11 to 12 May 2026 at the Royal Courts of Justice; authorised by the panel for issue on 28 July 2026. On appeal from the First-tier Tribunal (General Regulatory Chamber), case EA/2023/0280/FP, decided 27 June 2025 and amended under the slip rule on 25 July 2025.
What changed: The special purposes gateway is now expressly narrowed for automated processing. It is not enough that processing facilitates, or is associated with, the dissemination of material that itself has special purposes characteristics.
Analysis: The reasoning that will travel is at paragraph 48. Where processing is automated, the element of intention connoted by the word 'for' cannot simply be ignored; it must be understood in terms of what the automated system is capable of and what it is programmed to do. That is a workable test for attributing purpose to a system that has no mental state, and it is not limited to data protection.
Primary sources: Decision, [2026] UKUT 277 (AAC), Find Case Law
- Case
- (1) TikTok Inc (2) TikTok Information Technologies UK Limited v The Information Commissioner
- Neutral citation
- [2026] UKUT 277 (AAC); Appeal No. UA-2025-001401-GIA
- Tribunal
- Upper Tribunal, Administrative Appeals Chamber
- Panel
- The Honourable Lady Poole, Upper Tribunal Judge Nicholas Wikeley, Upper Tribunal Judge Thomas Church
- Representation
- Appellants: Anya Proops KC, Aidan Eardley KC and Zac Sammour, instructed by Bristows LLP. Respondent: Gerry Facenna KC, Robin Hopkins KC and Jenn Lawrence, instructed by the Information Commissioner.
- Jurisdiction
- United Kingdom
- Penalty at issue
- £12.7 million monetary penalty notice for breaches of Articles 5(1)(a), 8, 12 and 13 UK GDPR concerning the personal data of children under 13
- Status
- Appeal dismissed. Remitted to the First-tier Tribunal to consider all other outstanding issues.
- Bindingness
- A decision of the Upper Tribunal. Binding on the First-tier Tribunal and of precedential weight in later information-rights appeals.
- Editorial Note
- Informational analysis for working professionals, not legal advice. Confirm how any rule applies to your situation with qualified counsel.
- Primary source
- https://caselaw.nationalarchives.gov.uk/ukut/aac/2026/277
The argument TikTok was running
The Information Commissioner, concerned about TikTok's processing of the personal data of children under 13, imposed a £12.7 million monetary penalty notice for breaches of Articles 5(1)(a), 8, 12 and 13 of the UK GDPR.
TikTok's answer was jurisdictional rather than substantive. It argued that its processing of personal data had been for the special purposes, meaning journalistic, academic, artistic or literary purposes. If that were right, the Commissioner could not issue a monetary penalty notice without first satisfying the preconditions in section 156 of the Data Protection Act 2018: making a determination under section 174(3) and obtaining leave from a court.
Those preconditions exist because section 156 sits in a suite of special purposes provisions enacted to implement Article 85 UK GDPR, which permits derogations where necessary to reconcile data protection with freedom of expression and information. The practical effect of the argument, had it succeeded, would have been that the notice was ultra vires.
The First-tier Tribunal directed a hearing on that preliminary issue and decided it against TikTok. TikTok appealed to the Upper Tribunal.
Why the Tribunal did not have to decide what art is
The appeal invited an obvious rabbit hole. English law has authorities on what qualifies as artistic work, and the Tribunal notes the temptation of cases such as Hensher v Restawile Upholstery [1976] AC 64 and Lucasfilm Ltd v Ainsworth [2008] ECDR 17.
It declined the invitation, and the reason is the most quotable fact in the decision. TikTok's own witness of fact before the First-tier Tribunal, Mr Stafford, then TikTok's Global Head of Content and now Global Head of Operations, had accepted that there is no concept of artistic expression in the way the content recommendation system works.
The Tribunal also records what the system actually is, on the same witness's evidence: TikTok's recommender system comprises software code that uses machine learning models and logic-based rules to direct content to users' personalised feeds.
Counsel for TikTok, Ms Proops KC, argued that the use of TikTok's content creation and editing tools was a reliable proxy for whether content was artistic, so that a recommender which advantaged content made with those tools effectively promoted artistic content. The Tribunal records that the witness had accepted the tools could be used more broadly than that.
The test for attributing purpose to an automated system
The heart of the decision is short. The Tribunal holds that when section 156 is considered in the context of automated processing such as that done by TikTok, the element of intention connoted by the word 'for' cannot simply be ignored. It must instead be understood in terms of what the automated system is capable of and what it is programmed to do.
That formulation is worth isolating from its statutory setting. It answers a question that recurs across AI law and usually gets fudged: how do you attribute a purpose to a system that has no mental state? The Tribunal's answer is to look at capability and programming rather than at the intentions of the operator or the character of the output.
Applied here, the consequence follows directly. A recommender that has no concept of artistic expression is not processing personal data for artistic purposes, whatever the artistic merit of the videos it ranks.
The Tribunal's general holding on the gateway is expressed in the same terms of purpose. To fall within section 156 it is not sufficient that the processing facilitates, or is associated with, the dissemination of material that itself has special purposes characteristics. Processing is for the special purposes only where the purpose of the relevant processing is itself journalistic, academic, artistic or literary.
The other four holdings
The Tribunal dealt with the rest of the appeal briskly. On the Human Rights Act, it held that the interpretative obligation under section 3 did not operate so as to require the additional preconditions to be satisfied before the monetary penalty notice could lawfully be issued.
On the scope of the notice, it held that the parts concerning breaches of Articles 5(1)(a) and 8 UK GDPR were properly construed as given only with respect to the processing of the data of underage children.
On Articles 12 and 13, it held that those parts of the notice were given in relation to breaches of procedural obligations rather than in relation to the processing of personal data. That distinction matters, because a breach of a procedural duty is not processing to which a special purposes argument could attach in the first place.
Given those findings, the Tribunal did not need to determine a fifth ground about whether the notice could be partially upheld. Grounds 1 to 4 were dismissed and the appeal failed.
What happens next, and what it means for platforms
The appeal was on a preliminary issue, so the penalty is not yet finally resolved. The case was remitted to the First-tier Tribunal to consider all other outstanding issues, which is where the substantive challenge to the Commissioner's findings and the amount will be dealt with.
For platform counsel the immediate effect is narrower room to convert a content-character argument into a jurisdictional shield. The decision separates two things that submissions often merge: the expressive character of user content, and the purpose of the processing that stores, ranks and distributes it.
There is also a discovery point. TikTok's case foundered on its own witness's characterisation of how the recommender works, given in the tribunal below. Where a company intends to argue that automated processing serves an expressive purpose, the engineering description of the system is likely to be the controlling evidence, and it will usually already be on the record.
The reasoning is not confined to the special purposes. Any provision that turns on the purpose for which processing is carried out now has a UK authority saying that, for automated processing, purpose is read off capability and programming.
Two sentences from this decision belong in your files. For the gateway: processing is for the special purposes only where the purpose of the relevant processing is itself journalistic, academic, artistic or literary, and it is not enough that it facilitates or is associated with the dissemination of material that has those characteristics. For AI more broadly: where processing is automated, the intention connoted by the word 'for' must be understood in terms of what the automated system is capable of and what it is programmed to do. If you are contemplating an expressive-purpose argument about a ranking or recommender system, start by reading how your own engineers and witnesses have already described what that system is programmed to do, because that description is likely to decide it.
Source File
https://caselaw.nationalarchives.gov.uk/ukut/aac/2026/277
Open the decision and confirm four things: the neutral citation [2026] UKUT 277 (AAC) with appeal number UA-2025-001401-GIA in the header; the panel of Lady Poole, Judge Wikeley and Judge Church with hearing dates 11 to 12 May 2026; the Summary of Decision recording the £12.7 million penalty and the five numbered findings; and paragraphs 47 to 50, containing the witness's concession that there is no concept of artistic expression in the recommender and the Tribunal's test for intention in automated processing.
When section 156 DPA 2018 is considered in the context of automated processing such as that done by TikTok, the element of "intention" connoted by the word "for" cannot simply be ignored. Instead, it must be understood in terms of what the automated system is capable of and what it is programmed to do. TikTok Inc v The Information Commissioner, [2026] UKUT 277 (AAC) at [48]
FAQ
What was the penalty for?
The Information Commissioner imposed a £12.7 million monetary penalty notice on TikTok over its processing of the personal data of children under 13, for breaches of Articles 5(1)(a), 8, 12 and 13 of the UK GDPR.
What was TikTok's special purposes argument?
That its processing was for journalistic, academic, artistic or literary purposes, which would have required the Commissioner to satisfy the preconditions in section 156 of the Data Protection Act 2018 - a determination under section 174(3) and leave from a court - before issuing the notice. If so, the notice would have been ultra vires.
Why did it fail?
Because the Tribunal held that processing is for the special purposes only where the purpose of the relevant processing is itself journalistic, academic, artistic or literary. It is not sufficient that the processing facilitates, or is associated with, the dissemination of material that has those characteristics.
What did the Tribunal say about automated processing?
That the element of intention connoted by the word 'for' cannot simply be ignored where processing is automated, and must be understood in terms of what the automated system is capable of and what it is programmed to do.
Did the Tribunal decide what counts as art?
No, and it said it did not need to. TikTok's own witness had accepted that there is no concept of artistic expression in the way the content recommendation system works, which disposed of the point without reaching the authorities on artistic works.
Is the penalty now final?
No. This was an appeal on a preliminary issue. The appeal was dismissed and the case was remitted to the First-tier Tribunal to consider all other outstanding issues.
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