The CJEU decides lack of access to personal data does not unmake a joint controller: A look at Wirtschaftsakademie

Who is the controller?

The Court of Justice of the EU decided in Case C-210/16 Wirtschaftsakademie that Facebook and the administrator of a fan page created on Facebook are joint controllers under EU data protection law. The decision sent a mini shockwave to organizations that use Facebook Pages, just one week after the GDPR entered into force. What exactly does it mean that they are joint controllers and what exactly do they have to do in order to be compliant? The judgment leaves these questions largely unanswered, but it gives some clues as to finding answers.

Being a joint controller means they have a shared responsibility (with Facebook) to comply with EU data protection law for the processing of personal data occurring through their Facebook Page. As the Court highlighted, they have this responsibility even if they do not have access at all to personal data collected through cookies placed on the devices of visitors of the Facebook page, but just to the aggregated results of the data collection.

The judgment created a great deal of confusion. What has not been yet sufficiently emphasized in the reactions to the Wirtschaftsakademie judgment is that this shared responsibility is not equal: it depends on the stage of the processing the joint controller is involved in and on the actual control it has over the processing. This is, in any case, a better position to be in rather than “controller” on behalf of whom Facebook is processing personal data, or “co-controller” with Facebook. This would have meant full legal liability for complying with data protection obligations for the personal data processed through the page. It is, however, a worse position than being a third party or a recipient that is not involved in any way in establishing purposes and means of the processing. That would have meant there is no legal responsibility for the data being processed through the page. Technically, those were the other options the Court probably looked at before taking the “joint controllership” path.

It is important to note that the Court did not mention at all which are the responsibilities of whom – not even with regard to providing notice. The failure of both Facebook and the page administrator to inform visitors about cookies being placed on their device was the reason invoked by the DPA in the main national proceedings, but the Court remained silent on who is responsible for this obligation.

This summary looks at what the Court found, explaining why it reached its conclusion, and trying to carve out some of the practical consequences of the judgment (also in relation to the GDPR).

This first part of the commentary on the judgment will only cover the findings related to “joint controllership”. The findings related to the competence of the German DPA will be analyzed in a second part. While the judgment interprets Directive 95/46, most of the findings will remain relevant under the GDPR as well, to the extent they interpret identical or very similar provisions of the two laws.

Facts of the Case

Wirtschaftsakademie is an organization that offers educational services and has a Facebook fan page. The Court described that administrators of fan pages can obtain anonymous statistical information available to them free of charge. “That information is collected by means of evidence files (‘cookies’), each containing a unique user code, which are active for two years and are stored by Facebook on the hard disk of the computer or on other media of visitors to fan pages” (#15). The user code “is collected and processed when the fan pages are open” (#15).

The DPA of Schleswig-Holstein ordered Wirtschaftsakademie to close the fan page if it will not be brought to compliance, on the ground that “neither Wirtschaftsakademie, nor Facebook, informed visitors to the Fan Page that Facebook, by means of cookies, collected personal data concerning them and then processed the data” (#16).

The decision of the DPA was challenged by Wirtschaftsakademie, arguing that “it was not responsible under data protection law for the processing of the data by Facebook or the cookies which Facebook installed” (#16). After the DPA lost in lower instances, it appealed these solutions to the Federal Administrative Court, arguing that the main data protection law breach of Wirtschafstakademie was the fact that it commissioned “an inappropriate supplier” because  the supplier “did not comply with data protection law” (#22).

The Federal Administrative Court sent several questions for a preliminary ruling to the CJEU aiming to clarify whether indeed Wirtschaftsakademie had any legal responsibility for the cookies placed by Facebook through its Fan Page and whether the Schleswig Holstein DPA had competence to enforce German data protection law against Facebook, considering that Facebook’s main establishment in the EU is in Ireland and its German presence is only linked to marketing (#24).

“High level of protection” and “effective and complete protection”

The Court starts its analysis by referring again to the aim of the Directive to “ensure a high level of protection of fundamental rights and freedoms, and in particular their right to privacy in respect to processing of personal data” (#26) – and it is to be expected that all analyses under the GDPR would start from the same point. This means that all interpretation of the general data protection law regime will be done in favor of protecting the fundamental rights of data subjects.

Based on the findings in Google Spain, the Court restates that “effective and complete protection of the persons concerned” requires a “broad definition of controller” (#28). Effective and complete protection is another criterion that the Court often takes into account when interpreting data protection law in favor of the individual and his or her rights.

{In fact, one of the afterthoughts of the Court after establishing the administrator is a joint controller, was that “the recognition of joint responsibility of the operator of the social network and the administrator of a fan page hosted on that network in relation to the processing of the personal data of visitors to that page contributes to ensuring more complete protection of the rights of persons visiting a fan page” (#42)}.

The referring Court did not even consider the possibility that the administrator is a controller

Having set up the stage like this, the Court goes on and analyzes the definition of “controller”. To be noted, though, that the referring Court never asked whether the administrator of the fan page is a controller or a joint controller, but asked whether it has any legal responsibility for failing to choose a compliant “operator of its information offering” while being an “entity that does not control the data processing within the meaning of Article 2(d) of Directive 95/46” (#24 question 1).

It seems that the referring Court did not even take into account that the fan page administrator would have any control over the data, but was wondering whether only “controllers” have legal responsibility to comply with data protection law under Directive 95/46, or whether other entities somehow involved in the processing could also have some responsibility.

However, the Court does not exclude the possibility that the administrator may be a controller. First of all, it establishes that processing of personal data is taking place, as described at #15, and that the processing has at least one controller.

Facebook is “primarily” establishing means and purposes of the processing

It recalls the definition of “controller” in Article 2(d) of the Directive and highlights that “the concept does not necessarily refer to a single entity and may concern several actors taking part in that processing, with each of them then being subject to the applicable data protection provisions” (#29). The distribution of responsibilities from the last part of the finding is brought up by the Court without having any such reference in Article 2(d)[1].

This is important, because the next finding of the Court is that, in the present case, “Facebook Ireland must be regarded as primarily determining the purposes and means of processing the personal data of users of Facebook and persons visiting the fan pages hosted on Facebook” (#30). Reading this paragraph together with #29 means that Facebook will have a bigger share of the obligations in a joint controllership situation with fan pages administrators.

This idea is underlined by the following paragraph which refers to identifying the “extent” to which a fan page administrator “contributes… to determining, jointly with Facebook Ireland and Facebook Inc., the purposes and means of processing” (#31). To answer this question, the Court lays out its arguments in three layers:

1) It describes the processing of personal data at issue, mapping the data flows – pointing to the personal data being processed, data subjects and all entities involved:

• The data processing at issue (placing of cookies on the Fan Page visitors’ device) is “essentially carried out by Facebook” (#33);
• Facebook “receives, registers and processes” the information stored in the placed cookies not only when a visitor visits the Fan Page, but also when he or she visits services provided by other Facebook family companies and by “other companies that use the Facebook services” (#33);
• Facebook partners and “even third parties” may use cookies to provide services to Facebook or the business that advertise on Facebook (#33);
• The creation of a fan page “involves the definition of parameters by the administrator, depending inter alia on the target audience … , which has an influence on the processing of personal data for the purpose of producing statistics based on visits to the fan page” (#36);
• The administrator can request the “processing of demographic data relating to its target audience, including trends in terms of age, sex, relationship and occupation”, lifestyle, location, online behavior, which tell the administrator where to make special offers and better target the information it offers (#37);
• The audience statistics compiled by Facebook are transmitted to the administrator “only in anonymized form” (#38);
• The production of the anonymous statistics “is based on the prior collection, by means of cookies installed by Facebook …, and the processing of personal data of (the fan page) visitors for such statistical purposes” (#38);

2) It identifies the purposes of this processing:

• There are two purposes of the processing:
  • “to enable Facebook to improve its system of advertising transmitted via its network” and
  • “to enable the fan page administrator to obtain statistics produced by Facebook from the visits of the page”, which is useful for “managing the promotion of its activity and making it aware of the profiles of the visitors who like its fan page or use its applications, so that it can offer them more relevant content” (#34);

3) It establishes a connection between the two entities that define the two purposes of processing:

• Creating a fan page “gives Facebook the opportunity to place cookies on the computer or other device of a person visiting its fan page, whether or not that person has a Facebook account” (#35);
• The administrator may “define the criteria in accordance with which the statistics are to be drawn up and even designate the categories of persons whose personal data is to be made use of by Facebook”, “with the help of filters made available by Facebook” (#36);
• Therefore, the administrator “contributes to the processing of the personal data of visitors to its page” (#36);

One key point: not all joint controllers must have access to the personal data being processed

In what is the most impactful finding of this judgment, the Court uses one of the old general principles of interpreting and applying the law, ubi lex non distinguit, nec nos distinguere debemus, and it states that “Directive 95/46 does not, where several operators are jointly responsible for the same processing, require each of them to have access to the personal data concerned” (#38). Therefore, the fact that administrators have access only to anonymized data will have no impact upon the existence of their legal responsibility as joint controllers, since the criteria that matters is establishing purposes and means of the processing and that at least one of the entities involved in the processing has access to and is processing personal data. The fact that they only have access to anonymized data should nonetheless matter when establishing the degree of responsibility.

Hence, after describing the involvement of fan page administrators in the processing at issue – and in particular their role in defining parameters for processing depending on their target audience and in the determination of the purposes of the processing, the Court finds that “the administrator must be categorized, in the present case, as a controller responsible for that processing within the European Union, jointly with Facebook Ireland” (#39).

Enhanced responsibility for non-users visiting the page

The Court also made the point that fan pages can be visited by non-users of Facebook, implying that were it not for the existence of that specific fan page they accessed because they were looking for information related to the administrator of the page, Facebook would not be able to place cookies on their devices and process personal data related to them for its own purposes and for the purposes of the fan page. “In that case, the fan page responsibility for the processing of the personal data of those persons appears to be even greater, as the mere consultation of the home page by visitors automatically starts the processing of their personal data” (#42).

Jointly responsible, not equally responsible

Finally, after establishing that there is joint controllership and joint responsibility, the Court makes the very important point that the responsibility is not equal and it depends on the degree of involvement of the joint controller in the processing activity:

“The existence of joint responsibility does not necessarily imply equal responsibility of the various operators involved in the processing of personal data. On the contrary, those operators may be involved at different stages of that processing of personal data and to different degrees, so that the level of responsibility of each of them must be assessed with regard to all the relevant circumstances of the particular case” (#43).

Comments and conclusions

In the present case, the Court found early in the judgment that Facebook “primarily” establishes the means and purposes of the processing. This means that it is primarily responsible for compliance with data protection obligations. At the same time, the administrator of the fan page has responsibility to comply with some data protection provisions, as joint controller. The Court did not clarify, however, what exactly the administrator of the fan page must do in order to be compliant.

For instance, the Court does not go into analyzing how the administrator complies or not with the Directive in this case – therefore, assuming that the judgment requires administrators to provide data protection notice is wrong. The lack of notice was a finding of the DPA in the initial proceedings. Moreover, the DPA ordered Wirtschaftsakademie to close its Facebook page because it found that neither Facebook, nor the page administrator had informed visitors about the cookies being placed on their devices (#16).

The CJEU merely establishes that the administrator is a joint controller and that it shares responsibility for compliance with Facebook depending on the degree of their involvement in the processing.

The only clear message from the Court with regard to the extent of legal responsibility of the administrator as joint controller is that it has enhanced responsibility towards visitors of the fan page that are not Facebook users. This being said, it is very likely that informing data subjects is one of the obligations of the GDPR that can potentially fall on the shoulders of fan page administrators in the absence of Facebook stepping up and providing notice, since they can edit the interface with visitors to a certain extent.

Another message that is not so clear, but can be extracted from the judgment is that the degree of responsibility of the joint controllers “must be assessed with regard to all the relevant circumstances of the particular case” (#43). This could mean that if the two joint controllers were to enter a joint controllership agreement (as the GDPR now requires), the Courts and DPAs may be called to actually look at the reality of the processing in order to determine the responsibilities each of them has, in order to avoid a situation where the joint controller primarily responsible for establishing means and purposes contractually distributes obligations to the other joint controller that the latter could not possibly comply with.

As for the relevance of these findings under the GDPR, all the “joint controllership” part of the judgment is very likely to remain relevant, considering that the language the Court interpreted from Directive 95/46 is very similar to the language used in the GDPR (see Article 2(d) of the Directive and Article 4(7) GDPR). However, the GDPR does add a level of complexity to the situation of joint controllers, in Article 26. The Court could, eventually, add to this jurisprudence an analysis of the extent to which the joint controllership agreement required by Article 26 is relevant to establish the level of responsibility of a joint controller.

Given that the GDPR requires joint controllers to determine in a transparent manner their respective responsibilities for compliance through an arrangement, one consequence of the judgment is that such an arrangement should be concluded between Facebook and fan page administrators (Article 26(1) GDPR). The essence of the arrangement must then be made available to visitors of fan pages (Article 26(2) GDPR).

However, there is one obligation under the GDPR that, when read together with the findings of the Court, results in a conundrum. Article 26(3) GDPR provides that the data subject may exercise his or her rights “in respect of and against each of the controller”, regardless of how the responsibility is shared contractually between them. In the case at hand, the Court acknowledges that the administrator only has access to anonymized data. This means that even if data subjects would make, for example, a request for access or erasure of data to the administrator, it will not be in a position to solve such requests. A possibility is that any requests made to a joint controller that does not have access to data will be forwarded by the latter to the joint controller that does have access (what is important is that the data subject has a point of contact and eventually someone they can claim their rights to). This is yet another reason why a written agreement to establish the responsibility of each joint controller is useful. Practice will solve the conundrum, ultimately, with DPAs and national Courts likely playing their part.

[1] “(d) ‘controller’ shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law;”