Tansel Adacan v The Information Commissioner

1. These proceedings concern an application (the “Application”) under section 166(2) of the Data Protection Act 2018 (“DPA 2018”) for an order to progress the Applicant’s complaints against Essex Magazine (“EM”) regarding its failure to respond to an erasure request under Article 17 UK GDPR. The complaint was submitted to the Information Commissioner (“IC”) on 1 March 2025 and was dealt with under reference IC-368707-P6V3

2. On 9 and 23 April 2025, the Applicant called the IC’s helpline to chase progress concerning his complaints. The IC acknowledged the complaint on 25 April 2025.

3. On 1 May 2025, the IC’s case officer emailed EM’s Data Protection Officer. The case officer explained that having considered the material provided, it was his view that EM had failed to comply with its obligations under data protection legislation by failing to respond to the Applicant’s request for erasure within the statutory one-month period. The case officer advised EM to respond to the Applicant’s request within 14 calendar days, review its processes to avoid a repetition of non-compliance, and that on this occasion, no further action would be taken.

4. On the same day, the case officer wrote to the Applicant about his complaint. The case officer explained that having considered the relevant material concerning the complaint, he was of the view that EM had failed to comply with its obligations under data protection legislation by its failure to respond to the Applicant’s request within the statutory one-month period. The case officer also informed the Applicant the IC intended to take no further action.

5. On 20 May 2025, the Applicant emailed the case officer stating that he had still not received any response from EM and asked for advice concerning next steps.

6. On 2 June 2025, the case officer sent a further email to EM advising them that the Applicant had still not received a response and asked them to respond within the next 7 days. It also reminded EM that a failure to do so could result in further enforcement action being taken.

7. On the same date, the case officer emailed the Applicant advising him that they had contacted EM again to remind it of its obligations and that it should respond within the next 7 days.

8. The Applicant further advised the case officer on 9, 16 and 24 June and 2 July 2025 that EM had still not responded. On 7 July 2025, the case officer emailed the Applicant and stated that for the reasons set out in his previous letter, the IC did not consider further investigation or action is appropriate in this case.

9. The Applicant emailed the case officer on 8 July 2025 asking whether there were any further procedural steps he could consider.

10. On 17 July 2025, the case officer reiterated his view that no further action was appropriate in the circumstances of the particular case, including the exercise of more formal regulatory powers. The case officer noted the availability of the remedy under section 166 of the Data Protection Act 2018 , but suggested that the Applicant seek independent legal advice if considering whether to pursue this option, although stating that the complaint had been investigated and an outcome provided. Finally, the case officer advised that if the Applicant remained dissatisfied with the outcome, he could request a review.

11. On 14 August 2025, the Applicant requested a review of the handling of his complaint.

12. On 10 September 2025, the IC’s reviewing officer emailed the Applicant attaching the review outcome letter. The reviewing officer explained that the case officer’s outcome was appropriate to the circumstances of the case, namely, to provide guidance and recommendations to EM, as well as following up, where appropriate. The review officer further explained that the complaints process was intended to improve an organisation’s information rights practices and that an outcome was not a determination of fact, but the IC’s assessment as to whether an organisation is likely or unlikely to have complied with the data protection legislation in those particular circumstances. He also that there was the option to pursue court action where this was appropriate but advised the Applicant seek legal advice on this. He confirmed that the IC would not consider the complaint further. The Application

13. The Applicant applied to the Tribunal by way of form GRC3 dated 12 October 2025. He stated that the outcome he was seeking was as follows: a. That the Tribunal find that the IC failed to take appropriate steps in response to his complaint; and b. That the Tribunal direct the IC to: • “Reopen and properly investigate my complaint in light of the controller’s non- compliance and the evidence I have submitted; • Use its statutory powers to verify whether Essex Magazine (2Trom Group) is subject to the UK GDPR, and whether the journalism exemption under Article 17(3)(a) has been lawfully and expressly invoked; • Take appropriate regulatory action, including issuing an information notice or enforcement notice if Essex Magazine continues to ignore erasure requests in breach of Articles 12(3) and 5(2) of the UK GDPR; • Require Essex Magazine to provide a response to my erasure request in accordance with its legal obligations under the UK GDPR.”

14. In his grounds for the Application, the Applicant stated: I am applying to the Tribunal because the ICO failed to take appropriate action in response to my complaint under Article 77 UK GDPR and Section 165 of the Data Protection Act 2018 . I submitted a complaint after Essex Magazine ignored multiple erasure requests I made under Article 17 UK GDPR. The controller never responded, in clear breach of Article 12(3) which requires a response within one month, and Article 5(2) which requires the controller to demonstrate accountability. The article in question continues to damage my professional reputation and has resulted in personal distress and lost opportunities. The original source of the article, [name], has already removed it. In addition, I provided the ICO with clear evidence that other major publishers including [names] took similar articles offline after receiving lawful GDPR complaints. These removals show that there is precedent for media organisations, including large publishers, to comply with erasure requests where justified. Despite these facts, the ICO chose not to pursue enforcement and instead speculated that Essex Magazine might rely on the journalism exemption under Article 17(3)(a), without confirming whether the exemption had been properly invoked. The ICO did not verify the operational status of the controller, its legal obligations, or whether any lawful basis had been applied. The ICO failed to take steps available to it under its Regulatory Action Policy, including issuing an information or enforcement notice, or confirming that Essex Magazine is subject to UK GDPR obligations. This inaction leaves me with no remedy unless the Tribunal intervenes. I am not asking the Tribunal to decide whether the article should be deleted, but whether the ICO failed in its statutory duty to take appropriate regulatory action in response to a valid complaint. I respectfully request the Tribunal to consider this application in the interest of fairness, accountability, and data protection rights.” The strike-out application

15. The IC applied by way of form GRC5 dated 16 December 2025 to strike out the Application on the basis that the Tribunal has no jurisdiction to consider it under Rule 8(2)(a) and/or that there is no reasonable prospect of it succeeding under Rule 8(3)(c) (the “strike-out application”).

16. The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 37 to 40. In summary, these were as follows: a. The premise of the Applicant’s application is flawed. At the time of the application, the IC had taken an appropriate step in his response to the complaint when he had sent the outcome on 1 May 2025 that had covered all aspects of the complaint concerning the failure by EM to respond to his request for erasure. Accordingly, when the Tribunal adopts an objective test, and considers for itself, the question of whether the IC had taken appropriate steps, it is clearly evident that the IC had taken such steps in his handling of the complaint. Therefore, the Tribunal has no ability to make an order under section 166(2) of the DPA18 within the meaning of Smith at [60]. b. The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint, providing them with an outcome on 1 May 2025. The IC has taken steps to comply with the procedural requirements set out in section 166(1) of the DPA18, and there is therefore no basis for the Tribunal to make an order under section 166(2) DPA18. c. It is clear that the Applicant disagrees with the outcome reached by the IC on their complaint. However, as set out above, section 166 of the DPA18 does not provide a mechanism by which Applicants can challenge the substantive outcome of a complaint. The relief available from the Tribunal on an application under section 166 of the DPA18 only applies where it is satisfied that the IC has failed in some procedural respect to comply with the requirements of section 166(1) of the DPA18, limited solely to those orders that are set out in section 166(2) . d. If the Applicant wishes to seek an order of compliance against the controller for breach of their data rights, the correct route for them to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA18.

17. On 8 January 2026 Registrar Bamawo directed that the Applicant should provide representations in relation to the strike out application by 30 January 2026 under Rule 8(4).

18. The Applicant provided a response on 19 January 2026, which deals with the strike-out application so I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). The points made by the Applicant, in summary, were as follows: a. The IC failed to investigate “to the extent appropriate” under section 165(4) (a) DPA 2018 because it did not take formal regulatory action, verify whether the controller was active, issue an information notice or assess whether a breach had occurred. He stated “A regulator’s passive acceptance of non-response from a potentially inactive or rogue controller undermines accountability and due process.” b. The IC speculated that had EM responded it may have invoked the journalism exemption under Article 17(3) GDPR, but EM never did so. He stated “ Regulatory inaction based on conjecture undermines the Article 5(2) accountability principle and incentivises controllers to ignore data subjects with impunity ”. c. The IC did not intervene with EM, demonstrating inconsistency in the IC’s handling of complaints contrary to its own Regulatory Action Policy. d. The Application raises a serious legal and public interest issue namely what is the IC’s duty when a controller is silent, non-compliant, and possibly inactive/ This requires judicial scrutiny. Legal framework

19. Section 165 DPA 2018 sets out the right of data subjects to complain to the IC about infringement of their rights under the data protection legislation. Under section 166 DPA 2018 a data subject can make an application to this Tribunal for an order as follows: “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 - d. to take appropriate steps to respond to the complaint, or e. to inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order.”

20. 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.

21. Section 165 deals with the complainant’s right to make a complaint and states that: “(4) If the Commissioner receives a complaint under subsection (2), the Commissioner must— (a)take appropriate steps to respond to the complaint, (b)inform the complainant of the outcome of the complaint, (c)inform the complainant of the rights under section 166 , and (d)if asked to do so by the complainant, provide the complainant with further information about how to pursue the complaint. (5) The reference in subsection (4)(a) to taking appropriate steps in response to a complaint includes— (a)investigating the subject matter of the complaint, to the extent appropriate, and (b)informing the complainant about progress on the complaint, including about whether further investigation or co-ordination with foreign designated authority is necessary.”

22. In the case of Killock v Information Commissioner [2022] 1 WLR 2241 , the Upper Tribunal at paragraph 74 stated - " …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."

23. Mostyn J in the High Court in R (Delo) v Information Commissioner [2023] 1 WLR 1327 , paragraph 57 - " The treatment of such complaints by the commissioner, as before, remains within his exclusive discretion. He decides the scale of an investigation of a complaint to the extent that he thinks appropriate. He decides therefore whether an investigation is to be short, narrow and light or whether it is to be long, wide and heavy. He decides what weight, if any, to give to the ability of a data subject to apply to a court against a data controller or processor under article 79. And then he decides whether he shall, or shall not, reach a conclusive determination... ”.

24. Mostyn J’s decision in Delo was upheld by the Court of Appeal ( [2023] EWCA Civ 1141 ) – “ For the reasons I have given I would uphold the conclusion of the judge at [85] that the legislative scheme requires the Commissioner to receive and consider a complaint and then provides the Commissioner with a broad discretion as to whether to conduct a further investigation and, if so, to what extent. I would further hold, in agreement with the judge, that having done that much the Commissioner is entitled to conclude that it is unnecessary to determine whether there has been an infringement but sufficient to reach and express a view about the likelihood that this is so and to take no further action. By doing so the Commissioner discharges his duty to inform the complainant of the outcome of their complaint .” (paragraph 80, Warby LJ).

25. The decision of the Upper Tribunal in Cortes v Information Commissioner (UA-2023-001298-GDPA) which applied both Killock and Delo confirmed that the nature of section 166 is that of a limited procedural provision only. “ The Tribunal is tasked with specifying appropriate “steps to respond” and not with assessing the appropriateness of a response that has already been given (which would raise substantial regulatory questions susceptible only to the supervision of the High Court)….As such, the fallacy in the Applicant’s central argument is laid bare. If Professor Engelman is correct, then any data subject who is dissatisfied with the outcome of their complaint to the Commissioner could simply allege that it was reached after an inadequate investigation, and thereby launch a collateral attack on the outcome itself with the aim of the complaint decision being re-made with a different outcome. Such a scenario would be inconsistent with the purport of Article 78.2, the heading and text of (paragraph 33). section 166 and the thrust of the decisions and reasoning in both Killock and Veale and R (on the application of Delo). It would also make a nonsense of the jurisdictional demarcation line between the FTT under section 166 and the High Court on an application for judicial review.”

26. The case of Dr Michael Guy Smith v Information Commissioner [2025] UKUT 74 (AAC) , noted at paragraph 60 that “ it is for the Tribunal to decide, applying an objective test, if an “appropriate step” has been omitted, but observe that, in practice, that is unlikely to be the case where an ‘outcome’ has been produced. That is for two main reasons: first, because section 166 is a procedural provision and, as the principal mechanisms for enforcing rights or challenging the Commissioner are either claims against the data controller or judicial review of the Commissioner, section 166 should not be used to obtain ‘by the back door’ a remedy normally only available in those proceedings; secondly, because, if the Commissioner has already produced an outcome then, given the very wide discretion that the Commissioner has, both as to what and how to investigate and as to outcome, the scope for the Tribunal to say that an appropriate step has been omitted is limited.” In considering this the Tribunal must, as set out in paragraph 85 of Killick “when deciding objectively whether any (further) appropriate step needs to be taken by the Commissioner, take into account and give weight to the views of the Commissioner as an expert regulator.”

27. Paragraph 85 of Killick reads as follows: “ However, in considering appropriateness, the Tribunal will be bound to take into consideration and give weight to the views of the Commissioner as an expert regulator. The GRC is a specialist tribunal and may deploy (as in Platts) its non-legal members appointed to the Tribunal for their expertise. It is nevertheless our view that, in the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations she should undertake into any particular issue, and how she should conduct those investigations. As Mr Milford emphasised, her decisions about these matters will be informed not only by the nature of the complaint itself but also by a range of other factors such as her own regulatory priorities, other investigations in the same subject area and her judgment on how to deploy her limited resources most effectively. Any decision of a Tribunal which fails to recognise the wider regulatory context of a complaint and to demonstrate respect for the special position of the Commissioner may be susceptible to appeal in this Chamber.” Discussion and conclusions

28. The first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to his complaint on 1 May 2025 with a further response on 10 September 2025 following a review. I consider that the response dated 1 May 2025 was in fact an outcome to the complaint, because provided an answer to all outstanding issues and demonstrated that the IC had given consideration to whether there were other appropriate steps which could be taken to progress the Applicant’s complaint.

29. Even if I am wrong on this, I am satisfied that when taken together with the review response dated 10 September 2025, these responses have provided an outcome to the Applicant’s complaint, provided an answer to all outstanding issues and demonstrated that the IC had given consideration to whether there were other appropriate steps which could be taken to progress the Applicant’s complaint. This is sufficient in my view to demonstrate that the IC has complied with the requirements of section 165(4) . The fact that the Applicant does not agree with the outcome does not render it wrong in law.

30. It appears to me therefore that there are no further appropriate steps which the IC ought reasonably to take to progress the complaint. In making this decision I have given significant weight to the view of the IC as the expert regulator that there are no further appropriate steps he should have taken.

31. The outcome sought by the Applicant is also, in effect, challenging the substantive outcome of the complaint to the IC. The Tribunal does not have power under section 166 to consider the merits or substantive outcome of a complaint. Section 166 is limited to narrow procedural issues and there is no further procedural failing in respect of which the Tribunal can make a decision. In an application under section 166 , the Tribunal has no power to direct the IC to investigate, in a particular way or at all, to take enforcement action to secure compliance with a request or determine whether or not there has been a breach of the UK GDPR. I also agree with the IC’s position that it is not a court or ombudsman and that orders for compliance need to be sought through civil action. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought.

32. Because I consider that there was an outcome determining the complaint and that there were no further appropriate steps which should be taken, I find the complaint has already been determined and therefore the Tribunal has no jurisdiction over it. I am also satisfied that there is no reasonable prospect of the case, or any part of it, succeeding because the outcome sought by the Applicant is not something which is within the Tribunal’s power to grant.

33. The proceedings are therefore struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with them and under Rule 8(3)(a) because there is no reasonable prospect of them succeeding.