TikTok loses appeal over £12.7m ICO fine on children's data
The Upper Tribunal rejected TikTok's argument that it was processing data for "special purposes". The ICO says the reasoning will apply to other online platforms.
TikTok has lost its appeal in the Upper Tribunal against a £12.7m fine from the Information Commissioner's Office.
The ICO issued the fine in 2023 after an investigation found the video platform had breached UK data law by processing the data of children under the age of 13.
TikTok's appeal turned on a single legal argument. It said its data processing served "special purposes", a term the Data Protection Act defines as including journalistic, academic, artistic or literary purposes.
Had that argument succeeded, the ICO would have had to satisfy additional statutory preconditions before acting. On the ICO's account, that would have nullified the original fine.
The Upper Tribunal disagreed. It found that hosting user-generated content that happens to include journalistic, academic, artistic or literary material does not by itself meet the threshold.
The case is not finished. The Upper Tribunal has sent it back to the First-tier Tribunal, which will decide the substantive issues behind the fine.
So the £12.7m is not yet settled either way. What has been settled is that TikTok cannot use the special purposes route to get out of it.
The ICO's general counsel, Binnie Goh, said the regulator would continue to defend its original decision before the First-tier Tribunal.
Goh also said the tribunal's approach was likely to be relevant to other online platforms in similar circumstances.
That is the line founders should read twice. Any UK consumer app that hosts what users post now has one fewer defence when a regulator asks how it handles data belonging to children.
The practical question is not whether your platform carries creative or newsworthy material. It is whether you know how old your users are, and what you do with the data of the ones who are under 13.
The ICO said it remains focused on organisations providing online services to children. A company in that position would be unwise to wait for the First-tier Tribunal's ruling before checking its own position.