Stuart McCutchan v The Information Commissioner

Introduction

1. On 12 August 2025, the Applicant made an application to the Tribunal seeking an order under section 166(2) of the Data Protection Act 2018 (DPA 2018) requiring the Information Commissioner (the Commissioner) to take appropriate steps to respond to their complaint concerning Meta Platforms Ireland Limited including. The Applicant’s complaint to the Commissioner was made on 18 June 2025 and there had been no response from the Commissioner at the time the Applicant lodged his application.

2. In his response to the application, the Commissioner invites the Tribunal to strike out the appellant’s appeal on the basis that the Tribunal does not have jurisdiction to consider the appeal and/or that the appeal has no reasonable prospects of succeeding and accordingly, should be struck out. The Commissioner avers that the application was lodged prematurely (within the three-month time frame afforded to the Commissioner to progress the matter) and that an outcome has been provided to the Applicant on 3 September 2025

3. The Applicant was provided with an opportunity to respond to the Commissioner’s strike out application by way of directions issued by Judge Harris on 19 November 2025.

4. The Applicant has made written representations in relation to the proposed strike out and I have fully considered those representations. Legal Framework

1. Under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers it does not have jurisdiction in relation to the proceedings or that part of them; and does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

2. Under Rule 8(3)(c) of the Rules, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers there is no reasonable prospect of the applicant’s case, or part of it, succeeding.

3. Section 165 DPA sets out the right of data subjects to complain to the Commissioner about infringement of their rights under the data protection legislation. Under section 166 DPA a data subject can make an application to this Tribunal for an order as follows: 166 Orders to progress complaints (1) This section applies where, after a data subject makes a complaint under section 165 or Article 77 of the UK GDPR, the Commissioner - (a) fails to take appropriate steps to respond to the complaint, (b) fails to provide the complainant with information about progress on the complaint, or of the outcome of the complaint, before the end of the period of 3 months beginning when the Commissioner received the complaint, or (c) if the Commissioner's consideration of the complaint is not concluded during that period, fails to provide the complainant with such information during a subsequent period of 3 months. (2) The Tribunal may, on an application by the data subject, make an order requiring the Commissioner - (a) to take appropriate steps to respond to the complaint, or (b) to inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order.

4. The Tribunal can only make an order under section 166(2) if one of the conditions at section 166(1) (a), (b) or (c) is met. There have been a number of appeal decisions which have considered the scope of section 166 . It is clearly established that the Tribunal’s powers are limited to procedural issues, rather than the merits or substantive outcome of a complaint. Some key decisions are: a. Scranage v Information Commissioner [2020] UKUT 196 (AAC) , paragraph 6 - "In my experience – both in the present appeal and in many other cases – there is a widespread misunderstanding about the reach of section 166 . Contrary to many data subjects’ expectations, it does not provide a right of appeal against the substantive outcome of the Information Commissioner’s investigation on its merits. Thus, section 166(1) , which sets out the circumstances in which an application can be made to the Tribunal is procedural rather than substantive in its focus." (emphasis in original). b. Killock v Information Commissioner [2022] 1 WLR 2241 , Upper Tribunal at paragraph 74 - "… It is plain from the statutory words that, on an application under section 166 , the Tribunal will not be concerned and has no power to deal with the merits of the complaint or its outcome. We reach this conclusion on the plain and ordinary meaning of the statutory language but it is supported by the Explanatory Notes to the Act which regard the section 166 remedy as reflecting the provisions of article 78(2) which are procedural. Any attempt by a party to divert a tribunal from the procedural failings listed in section 166 towards a decision on the merits of the complaint must be firmly resisted by tribunals ." Background

5. The factual background to this case is succinctly set out at [27] to [36] of the Commissioner’s response dated 19 September 2025:

27. On 18 June 2025, the Applicant submitted a complaint to the Commissioner regarding Meta Platforms Ireland Ltd (Meta), concerning the deactivation of his Facebook account and Meta’s response to his Data Subject Access Request (SAR)[Annex 1]

28. The Applicant filed an Application under s.166 of the DPA18 on 12 August 2025, despite the complaint still being within the three-month timeframe afforded to the Commissioner to progress the matter.

29. The complaint was allocated case reference IC-395726-S7L1 and assigned a case officer.

30. On 3 September 2025, having reviewed the evidence provided, the case officer issued an outcome. The case officer explained that it remained unclear whether the deactivation of the Applicant’s account was carried out in accordance with Meta’s terms and conditions. However, based on the evidence submitted, there are indications that Meta may not have adhered to its data protection responsibilities [Annex 2/1-2].

31. On the same day, the case officer contacted Meta and requested the organisation to contact the Applicant within the next 14 days to resolve the issues raised [Annex 2/3-5]. A copy of this correspondence was sent to the Applicant.

32. On 5 September 2025, the Applicant emailed the case officer to raise concerns with the response he had received from Meta.

33. The case officer responded to the Applicant on 9 September 2025. It was explained that Meta is expected to address the issues raised in the complaint. The Applicant was further advised that, should any matters remain unresolved, they should be raised directly with Meta in the first instance.

34. On the same day, the Applicant informed the case officer that he is unable to contact Meta directly and that his complaint had been misdirected to the incorrect department. He asked the case officer how he should proceed with resolving his complaint.

35. On 11 September 2025, the case officer contacted Meta to request that the organisation reconsider the issues raised by the complainant and address its compliance with the subject access request within seven days. The case officer also contacted the Applicant on the same day to inform him of this development [Annex 3].

36. On 15 September 2025, Meta contacted the case officer to confirm that a response had been issued to the Applicant. The case officer is currently reviewing the correspondence and will contact both parties regarding the status of the complaint in due course. Conclusions

5. I find that the Commissioner has provided an outcome to the complaint on 3 September 2025 with a request to Meta to resolve the issues found and that the Applicant acted hastily in lodging this application with the Tribunal.

6. Contrary to the expectations of many Appellants, section 166 does not provide a right of appeal against the substantive outcome of the Commissioner’s investigation on its merits. The Tribunal is bound to take into consideration and give weight to the views of the Commissioner, as described by the Chamber President in Barbara Rogers v ICO EA/2021/0348:

7. ’14…In the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations he should undertake into any particular issue, and how he should conduct those investigations. This will be informed not only by the nature of the complaint itself but also by a range of other factors such as his own registry priorities, other investigations in the same subject area and his judgement on how to deploy his limited resources most effectively: Killock & Ors v Information Commissioner [2021] UKUT 299 . The obligation of the Commissioner is to take appropriate steps to respond to the complaint’.

8. The Appellant’s response to the Respondent’s strike out application The Applicant confirms that his appeal concerns the ICO’s failure to adequately address serious and protracted GDPR violations by Meta. The Applicant states that he does not consider that hed has secured a ‘full and effective’ outcome. The Applicant accepts that the ICO has intervened and this led to the restoration of his Facebook account, he does not consider the outcome provided by the Commissioner to have resolved the core GDPR violations which formed the basis of his original complaint.

9. It is clear that the Appellant is challenging the substantive outcome of the complaint to the Commissioner. The Tribunal does not have the power under section 166 to consider the merits or substantive outcome of a complaint.

10. Section 166 is limited to procedural issues and specifically allows the Tribunal to make an order requiring the Commissioner (a) to take appropriate steps to respond to the complaint. The Commissioner took steps to investigate and respond to the complaint. It provided an outcome to the complaint and liaised with Meta to resolve issued identified during the investigation. The Tribunal only has the power to order the Commissioner to take appropriate steps to respond. In this case, the Commissioner has responded. The Tribunal does not have the power to assess the merits, conduct nor the scope of the Commissioner’s investigation.

11. In investigating the Applicant’s complaint, the Commissioner considered the Applicant’s complaint and the evidence available. I find that in the circumstances, the steps taken by the Commissioner were objectively appropriate.

12. For these reasons, I find that the Commissioner has not failed to comply with the procedural requirements set out in section 166(1) of the DPA. I therefore find that there is no reasonable prospect of the appeal or any part of it succeeding. The proceedings are therefore struck out. Signed: Judge Peri Mornington Date: 8 January 2026