Data Protection Act 2018, section 163

Determination of appeals

PART 6 Enforcement

(1)Subsections (2) to (4) apply where a person appeals to the Tribunal under section 162(1) or (3).

(2)The Tribunal may review any determination of fact on which the notice or decision against which the appeal is brought was based.

(3)If the Tribunal considers—

(a)that the notice or decision against which the appeal is brought is not in accordance with the law, or

(b)to the extent that the notice or decision involved an exercise of discretion by the [F695CommissionF695] , that the [F695CommissionF695] ought to have exercised the discretion differently,

the Tribunal must allow the appeal or substitute another notice or decision which the [F695CommissionF695] could have given or made.

(4)Otherwise, the Tribunal must dismiss the appeal.

(5)On an appeal under section 162(2), if the Tribunal considers that the enforcement notice ought to be cancelled or varied by reason of a change in circumstances, the Tribunal must cancel or vary the notice.

(6)On an appeal under section 162(4), the Tribunal may cancel the [F696Commission'sF696] determination.

Definitions used in section 163 3

tribunal

“tribunal” means any tribunal in which legal proceedings may be brought;

Defined in s.205(1) · see it in the full Act
the Tribunal

“the Tribunal”, in relation to an application or appeal under this Act, means—

(a)

the Upper Tribunal, in any case where it is determined by or under Tribunal Procedure Rules that the Upper Tribunal is to hear the application or appeal, or

(b)

the First-tier Tribunal, in any other case.

Defined in s.205(1) · see it in the full Act
enforcement notice

“enforcement notice” has the meaning given in section 149;

Defined in s.181 · see it in the full Act

Cases considering section 163 4

Doorstep Dispensaree Limited v The Information Commissioner

[2024] EWCA Civ 1515 · 9 December 2024Interprets

Requires the Tribunal to conduct a full merits determination, allowing or substituting the decision where the notice is unlawful or the Commissioner’s discretion should have been exercised differently. (see paras [20]-[22], [39]-[42]) Allows review of factual determinations underlying the notice or decision. (see para [20]) Requires allowance or substitution where the notice is unlawful or the Commissioner’s discretion should have been exercised differently. (see para [20]) Requires dismissal where the statutory grounds for allowing or substituting the decision are not made out. (see para [20])

The Information Commissioner v Experian Limited

[2024] UKUT 105 (AAC) · 22 April 2024

The FTT may review the factual basis of an enforcement notice and must allow the appeal or substitute a notice where the notice is unlawful or the Commissioner exercised discretion differently from how it ought to have been exercised. (see para [70])

Doorstep Dispensaree Ltd v The Information Commissioner

[2023] UKUT 132 (AAC) · 1 June 2023

The provision was applied to confirm the First-tier Tribunal’s power to review factual determinations and substitute a notice where the statutory conditions or discretion were not properly exercised. (see para [54])

What each judgment says about section 163 is in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F695Word in s. 163(3) substituted (30.9.2026) by The Data (Use and Access) Act 2025 (Consequential Amendments and Transitional Provision) Regulations 2026 (S.I. 2026/386), reg. 1(2), Sch. 2 para. 23(2)(3); S.I. 2026/1015, reg. 2(c)
  2. F696Word in s. 163(6) substituted (30.9.2026) by The Data (Use and Access) Act 2025 (Consequential Amendments and Transitional Provision) Regulations 2026 (S.I. 2026/386), reg. 1(2), Sch. 2 para. 23(2)(3); S.I. 2026/1015, reg. 2(c)

Commencement

  1. I170S. 163 in force at 25.5.2018 by S.I. 2018/625, reg. 2(1)(f)