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Tuesday, 9 July 2019

ICO issues two notices in two days of its intention to levy multimillion pound fines under GDPR

You know how you can be standing at a bus stop for ages, only to have two buses come along at once? Well, it’s been over a year since the General Data Protection Regulation (“GDPR”) came into force and data protection professionals across the UK have been watching and waiting for the first GDPR fine to be issued by the Information Commissioner’s Office (“ICO”). That wait looks like it will soon be over because in the last two days, the ICO has announced its intention to levy huge fines for data breaches under the GDPR on not one, but two organisations.

Back in October 2018, there had been some false hope around the case of Facebooks involvement in the Cambridge Analytica data scandal, where the penalty levied was trumpeted as the largest ever awarded by the ICO. However, the case began under pre-GDPR data protection rules, so £500 million was the maximum fine that could be levied.

Instead, according to the ICOs latest statements, British Airways (“BA”) and Marriott International (Marriott) could end up being the first organisations in the UK to feel the impact of the GDPRs penalty system, where maximum fines can reach €20 million or 4% of annual global turnover, whichever is greater.

What happened?

At BA, the case began when it notified the ICO in September 2018 of a cyber incident whereby users of its website had been diverted to a fraudulent site. Hackers used this false site to harvest customer details, compromising the personal data of about 500,000 customers, according to the ICOs investigation. The ICO believes that the breach began in June 2018 and that data relating to logins, payment cards, travel booking details, names and addresses was compromised by poor security arrangements at the company”. It intends to fine the airline £183.39 million.

In the case of Marriott, it notified the ICO in November 2018 of a cyber incident involving the exposure of personal data contained in approximately 339 million guest records. Of these, 30 million related to residents in the European Economic Area (EEA), of which 7 million related to UK residents. The vulnerability is believed to have begun in 2014, in the computer systems of the Starwood hotels group. Marriott acquired Starwood in 2016, but it was two more years before the exposure of personal data was discovered. The ICOs investigation found that Marriott failed to undertake sufficient due diligence when it bought Starwood and should also have done more to secure its systems”. It intends to fine the US hotel group more than £99 million.

Can the organisations appeal?

The two fines (BAs amounts to about 1.5% of its £11.6 billion global turnover last year) arent a done deal. Both organisations can now make representations to the ICO about its findings and the proposed sanction. 

Willie Walsh, the chief executive of BAs parent company, International Airlines Group (IAG), has declared his intention to do so, saying, We intend to take all appropriate steps to defend the airlines position vigorously, including making any necessary appeals.” 

Marriotts president, Arne Sorenson, confirmed that it would be taking the same approach, saying, We are disappointed with this notice of intent from the ICO, which we will contest.

After reviewing the representations, the ICO will decide whether to proceed as intended with the monetary penalty notice, or indeed apply a different penalty. If the ICO issues a penalty notice, BA and Marriott would have 28 days to pay the fine or lodge an appeal at the Tribunal. If they pay on time, they get a 20% discount!

Does anyone else get a say?

The ICO has been conducting its investigations into BA and Marriott as the lead supervisory authority acting on behalf of data protection authorities (DPAs) in other EU member states. Therefore, in accordance with the GDPRs one-stop-shop mechanism, the ICO will be inviting comment on its findings from those EU DPAs whose residents have been affected. It has announced that it will consider carefully representations from the two organisations and other DPAs before making its final decision.

It will be fascinating to see how the one-stop-shop mechanism will work across the EU. Interestingly, if the UK was outside the EU, BA and Marriott would be dealing with the UKs ICO and a lead supervisory authority for the EU.

Where does the money go?

Whatever sum the ICO arrives at, the penalty will be split among the EU DPAs, with the ICOs share going directly to the UK Treasury. Individuals who are affected by the data breach and seeking compensation will need to claim money from BA or Marriott direct – the ICO does not have the power to award compensation directly to individuals.

As yet, the ICO has not released any further details about the reasoning behind its intentions to fine BA and Marriott, so we will comment further when more information comes to light.

At Pritchetts Law, we can help you with all aspects of data protection compliance, including preparing for or handling personal data breaches when they happen as well as taking preventative steps such as carrying out audits and implementing policies and procedures. Please get in touch to find out more.

Thursday, 16 May 2019

ICO highlights importance of staff training on data protection

The accountability principle of the General Data Protection Regulation (“GDPR”) which hadn’t been a feature of its UK predecessor, the UK Data Protection Act 1998 – puts new impetus behind the need for organisations to train their staff in data protection.

The principle requires organisations not only to be responsible for complying with the GDPR, but also to demonstrate their compliance by establishing appropriate technical and organisational measures. These include the implementation of a comprehensive training programme and data protection policies as well as the adoption of a “data protection by design and default” approach, among others.

A shiny new set of data protection policies is of limited use if staff who process personal data aren
t aware of them or trained in their implementation. After all, an organisations employees are pivotal in ensuring that the organisation complies with the data protection rules. Raising staff awareness of data protection issues is a fundamental part of an organisations overall data protection system and its compliance with the accountability principle and data protection by design and default obligations under the GDPR.

Staff training should build on your organisation
s data protection policies and guidelines as well as on the outcome of your data protection audit and data-mapping exercises. When staff are not trained in this way, it can lead to significant harm to the organisation, as Henry Ford indicated a century ago when he said, The only thing worse than training your employees and having them leave is not training them and having them stay.

In the worst cases, where a serious data protection issue has arisen and the Information Commissioner
s Office (ICO) has been informed, the regulator has made it clear that it will pay careful attention to any gaps in training and lack of awareness that it unearths.

In April 2019, the ICO tweeted,
Staff training is absolutely key. We will nearly always ask about this and will expect to see evidence that it has been delivered to an appropriate standard.

Our experience of assisting clients to handle data protection breaches and near-miss incidents is that insufficient training is almost always involved, with further training being required to remedy issues.


What should you do to improve your data protection training programme?

  • For a successful data protection programme, senior management need to demonstrate their commitment to a training programme and indeed to data protection compliance generally. If those at the top arent publicly invested in the importance of data protection within the organisation, its unrealistic to think that employees wont adopt the same attitude.
  • With this buy-in from the top, your organisation can ensure that it has a robust set of data protection policies and procedures in place.
  • The next step is to raise awareness of these policies and procedures, highlighting specific data protection issues that affect particular members of your staff and helping to address particular problems or challenges that they may face. This could include, for example, general advice-focussed training sessions on topics such as data protection compliance and data security. Alternatively, it could involve more bespoke, lengthier workshops on specific areas such as:
    • What to do if a breach occurs, sanctions for non-compliance and how to handle investigations and liaisons with the ICO and other regulators.
    • How to handle a subject access request (SAR) or other individual rights requests.
    • Handling human resources/personnel issues.
    • Ensuring that marketing and communication campaigns are compliant.
    • Challenges encountered by customer service agents when handling calls.
    • Compliance when outsourcing to third-party processors and cloud services.
    • Ensuring compliant international data transfers directly or when sub-contracting. 
    • Performing data-mapping exercises, data protection audits and data protection impact assessments (DPIAs).
    • Ensuring effective data retention and destruction.   
    Raising awareness is an ongoing process, so organisations should seek out their most creative teams to implement a data protection awareness campaign that engages staff effectively. Such a campaign should include not just face-to-face training and e-learning packages, but also targeted reminders via intranet messages, emails, newsletters or even posters in communal staff areas.
  • The other element of raising awareness is ensuring that staff who handle personal data are trained at appropriate levels in the organisations data protection policies and guidelines. This could be through instructor-led, face-to-face training and workshops, e-learning courses or a combination of these and other approaches. It may even be a good idea to include a quiz or test as part of the training to provide evidence that the staff member understood what was being discussed.
  • Finally, going back to the ICOs comment about evidence, organisations must track what training has been carried out and which staff have attended. It will also be important to know yourself – and to be able to demonstrate to the ICO on request – what your plan is for catching up staff who have been absent, such as new starters or those on maternity or other types of leave.
Here at Pritchetts Law, we are experts in data protection training. Not only do we provide training and workshops for our own clients in-house, but Stephanie is also a tutor on many public courses run by PDP, the leading provider of professional training courses in information management and compliance.

We regularly advise on data protection audits and data-mapping exercises large and small, as well as assisting organisations with DPIAs. We often uncover areas of potential non-compliance or near-misses that require bespoke data protection policies and guidelines, which we can follow up with bespoke data protection training and workshops if required.

If you need help with any aspect of training your staff in data protection, or indeed any other aspect of data protection compliance, please get in touch.

Tuesday, 26 March 2019

How will a no-deal Brexit affect our data protection laws?

Are you like Times columnist, Hugo Rifkind? Asked to predict what would happen next with Brexit, he responded, "I don't know anything. Nobody knows anything. The government doesn't know what it is doing and the ERG also doesn't know what it is doing. The Labour Party, meanwhile, doesn't know what it is doing. Looking towards the future, then, my thoughts are 'wuh?' and 'huh?' and 'can we talk about something else?'"

It's fair to say that considering the implications of Brexit in the round is quite the brain-scrambler. However, if we focus on specific aspects, we'll get a much clearer picture, so let's examine now the implications of Brexit on data protection law.

The current state of play

As part of the EU, the UK is subject to the General Data Protection Regulation (GDPR). The UK then adopted the Data Protection Act 2018 (DPA 2018), which includes various derogations where the GDPR allows for these, and extends the concepts of the GDPR to other areas such as law enforcement and the intelligence services. Also in the data protection legislation mix are the Privacy and Electronic Communications Regulations (PECR), which give people specific rights in relation to electronic communications, and the Network and Information Systems Regulations 2018 (NIS), which are aimed at improving cybersecurity.

The European Union (Withdrawal) Act 2018 (
EUWA) passed into law in June 2018 and retains the GDPR in UK law. Therefore, when the UK leaves the EU, organisations and data subjects will experience the same fundamental principles, obligations and rights that they've been used to.

Well, that sounds fine. What's all the fuss about?

As always, the devil is in the detail, and the particular devil that is the focus of this blog is international data transfers.

International data transfers

With the UK a member of the EU, personal data can flow freely between organisations in the UK and the European Economic Area (EEA) without requiring any specific additional compliance measures, because a common set of rules – the GDPR applies to all countries in the EEA. That will all change if the UK leaves the EU without a withdrawal agreement that makes specific provisions for the continued flow of personal data to the UK as a non-EEA country during the transition phase.

If we leave without a deal, the UK government has committed to taking steps to facilitate the flow of personal data to EEA states and to Gibraltar, enabling that data to flow freely from the UK to those areas. The UK has also committed to honouring any adequacy decisions that were agreed before the UK's exit date, such as those relating to Japan and the US (although the latter is limited to the
EU–US Privacy Shield).

The EU-US Privacy Shield

The clue's in the name: the Privacy Shield framework only applies between the EU and the US. By leaving the EU, the UK will no longer be covered by it. Therefore, UK companies transferring personal data to the US will need to check whether the US organisation receiving the data has agreed to extend its commitment to the Privacy Shield by accepting data flowing in from the UK. The US Department of Commerce has stated that, in the event of a no-deal Brexit, Privacy Shield participants must update their privacy notices by the exit date to confirm their decision to extend their operation of the Privacy Shield to the UK.

Although the UK has committed to maintaining the same free flow of personal data as it did as part of the EU, no such reciprocal arrangement has been mooted by the EU27. Therefore, GDPR transfer rules will apply to any data coming from the EEA into the UK.

Organisations will therefore need to consider what GDPR safeguards they can establish to ensure that personal data continues to flow into the UK in a compliant manner.


These safeguards sound handy. Tell me more.

When the UK leaves the EU, it will become a non-EEA country, also known as a third country in data protection terms. Under the GDPR, data transfers to third countries are restricted unless certain safeguards are established. There are various potential safeguards/compliance measures that can be put in place, including the following:
  • Standard contractual clauses (SCCs). The UK organisation and the relevant EEA organisation will need to enter into a contract that incorporates SCCs. These clauses place contractual obligations on the data exporter (the controller based in the EEA) and the data importer (the processor or controller outside the EEA), and set out rights for the individuals whose personal data is transferred.

    However, only transfers from controllers are currently covered under the two versions of the EU SCCs. The circumstances for data transfers from an EEA processor to a UK controller may therefore be restricted. Neither
    the Information Commissioner's Office (ICO) nor the European Data Protection Board (EDPB) have clarified how this would be permitted in practice - a very unsatisfactory position indeed!

  • Binding corporate rules (BCRs). This is an intra-group arrangement that a UK organisation can sign up to with the relevant EEA organisation to allow restricted data transfers (e.g. among parts of a multinational group). The arrangement must be submitted to and approved by an EEA supervisory authority in an EEA country where one of the companies is based. This process usually takes a considerable time to implement.

    Under the GDPR, BCRs allow the free flow of data both within and outside the EEA. Those BCRs certified by the
    ICO are recognised by 21 EEA countries under mutual recognition. However, this may not continue after Brexit.

  • Adequacy decisions. At the time of writing this article, the European Commission has not made an adequacy decision about the UK, despite the UK's current implementation of the GDPR. Discussions on an adequacy decision had been expected to occur during the 21-month transition period allowed for in the withdrawal agreement, but a no-deal Brexit means no transition period.

For more information about SCCs and BCRs, including template contracts for SCCs, see the ICO's guidance or contact us at Pritchetts Law LLP for advice and support with putting these in place.


How does the ICO fit into the Brexit picture?

That's a good question. At the moment, organisations that perform cross-border data-processing have to deal with only one EEA supervisory authority. When the UK leaves the EU, the ICO will no longer be recognised as one such authority. This means that UK organisations that are involved in cross-border processing could be subject not just to the ICO, but to one or more EEA lead authorities. These authorities could supervise and possibly fine UK organisations for their activities. Equally, EEA-based organisations may need to deal with the ICO in addition to their local regulator.

My company is based in the EEA and not established in the UK. Will I need to appoint a representative?

Yes. If your company offers goods or services to UK individuals, or monitors their behaviour, it will be subject to the UK version of the GDPR and you will need to appoint a representative in the UK.

Likewise, under the GDPR, UK-based companies that are not established in the EEA, but offer goods or services to EEA individuals, or monitor their behaviour, will need to appoint a representative in the EEA.

Representatives act on behalf of their principals, so if there is non-compliance, they can be fined by the ICO or by data protection authorities in the EEA.


Does Brexit only affect the implementation of the GDPR? What about PECR, etc?

The UK government has confirmed that PECR and NIS will continue to apply in the UK after Brexit, although in relation to the latter, UK-based digital service providers will need to appoint representatives in the EU if they want to maintain access to EU markets.

The draft new EU ePrivacy Regulation, however, will not be implemented in the UK after Brexit. Where it differs from PECR, companies that perform direct marketing to individuals in the UK and the EU27 will need to comply with both the UK and EU regulatory regimes. There are also concerns that if that new EU ePrivacy Regulation is not implemented in the UK, this may affect the EU's decision to award the UK adequacy status as a safe country for data flows (as discussed above).


Help! How can I prepare my business for no-deal?

  • Contact your partners in the EU to discuss how you can work together to ensure that data can continue to flow into the UK.
  • Read the Six Steps to Take and Data protection if there's no Brexit deal guides from the ICO, which help organisations to understand the implications of no-deal and plan ahead.
  • By the day the UK leaves the EU, you'll need to have taken various actions such as:
    • Appointing representatives in the EU or the UK depending on where you're based.
    • Checking your contracts and terms around restrictions on data transfers into or outside the EU/EEA.
    • Updating privacy notices to reflect your data transfers into or outside the EU/EEA.
    If you would like some help with this, or any other assistance with your organisation's Brexit planning, please contact us.

Thursday, 25 October 2018

Our Legal Support Assistant secures PC.dp qualification

Hilary Homer, our Practice Manager and Legal Support Assistant, has passed the exam for the PDP Practitioner Certificate in Data Protection (PC.dp) and is now a qualified Data Protection Practitioner.

Her five-day course, which was fully up to date with the requirements of the General Data Protection Regulation (GDPR), covered essential data protection knowledge, data security, handling subject access requests and conducting data protection impact assessments.

Prior to joining our firm, Hilary has had a long career in publishing, working on educational materials for schools and editing school assemblies, technical training manuals and e-learning courses.

Thanks to her PC.dp training, Hilary now has a solid knowledge of data protection law and an understanding of the practical implications of the GDPR for organisations. This is a great asset for her continuing work in proofreading and editing documents for our firm. Our solicitors will continue to carry out all of the legal advice work on matters for our clients, but Hilary's new status as a Data Protection Practitioner will ensure that she can edit and proofread documents for our clients with an enhanced knowledge of the subject area. In this way, we can continue to create economies in our delivery for clients.

Successful completion of the Practitioner Certificate in Data Protection programme demonstrates to employers and others that the candidate possesses a solid knowledge of data protection law, as well as an understanding of the practical implications for organisations of the GDPR.

Hilary said, I am thrilled to have passed this rigorous exam and am grateful to the Partners at Pritchetts for supporting my development by putting me forward for it. The course has given me an excellent grounding in data protection law at a practical level. I now have the confidence to analyse documentation with a feel for how organisations will use it. I am really enjoying using my new skills in my work!

Stephanie Pritchett, a Partner at the firm, said, My Partner, Ben Wootton, and I are delighted with Hilarys result. She worked incredibly hard to achieve this PC.dp qualification, following intensive training and studying over the last year. This PDP course is long-established and very highly regarded in the sector, and is often undertaken by Data Protection Officers and legal compliance experts alike. The course is rigorous in its education around the new and more onerous requirements of the GDPR and has brought Hilary bang up to date with the new law. Hilary is going from strength to strength in this role, is highly engaged in data protection matters and is a fabulous support to the whole team.

For more information about what Pritchetts Law LLP can offer your organisation, visit our website. For comment on data protection issues, why not sign up to our newsletter or check out our blog? You can also follow us on LinkedIn and Twitter.

Friday, 19 October 2018

ICO consults on establishing a regulatory sandbox to support innovation

A few weeks ago, the Information Commissioner issued a call for views on creating a regulatory sandbox. That consultation has now closed, and the Information Commissioner is reviewing the feedback to inform further work on developing the sandbox. But what's a regulatory sandbox? And how does it work? Read on to find out more.

What is it?
The Information Commissioner's Office ("ICO") has defined its regulatory sandbox as "a safe space where organisations are supported to develop innovative products and services using personal data in innovative ways." Participating organisations would be able to take advantage of the ICO's expertise in the areas of risk mitigation and data protection by design while ensuring that they were establishing appropriate protections and safeguards, although they wouldn't be exempt from complying with data protection law.

Has there ever been one before?
Creating a regulatory sandbox is an innovative approach for a data protection regulator. However, regulatory sandboxes are already being used in FinTech, notably by the Financial Conduct Authority ("FCA"), which launched its sandbox over two years ago. In a report outlining the lessons learned from the first year of the sandbox being in operation, the FCA concluded that:
  • Access to the sandbox had reduced the time and cost of getting innovative ideas to market.
  • Testing in the sandbox had helped facilitate access to finance for innovators, enabling products to be tested and introduced to the market.
  • The sandbox had enabled the FCA to work with innovators to build appropriate consumer protection safeguards into new products and services.

Why would it be useful?
A regulatory sandbox could be particularly beneficial for the data protection community. Organisations are starting to realise that compliance with data protection law is an iterative process, not something that has to be done only once on a project. Also, projects involving technical innovation have particular requirements to meet under data protection law, so using the ICO's "safe space" in tandem with its Regulators' Business and Privacy Innovation Hub to develop them could be advantageous.

However, we don't yet have a clear picture of how it works if businesses have already gone live with a technologically innovative project and then want to use the sandbox to develop it further. The sandbox doesn't offer a data protection amnesty, so if a particular project is not compliant when it is first trialled in the sandbox, it is unclear how the ICO would handle that.

What feedback has there been so far?
The Centre for Information Policy Leadership ("CIPL") has responded to the ICO's call for views, welcoming the ICO's initiative of creating a regulatory sandbox. However, it pointed to anxieties that organisations might have with using it in the absence of a data protection amnesty, saying, "information disclosed into the sandbox must only be used as the basis for an enforcement action in exceptional circumstances . . . the ICO must give some benefit of the doubt where - during testing in a real-life scenario in the supervised space - genuine uncertainty arises about compliance."

In its comments, CIPL sets out:
  • The benefits of the regulatory sandbox for organisations, the ICO, society, the economy and individuals.
  • Real-world and hypothetical examples of situations where participation in such a sandbox could be useful.
  • The practicalities that need to be considered in order to maximise the sandbox's success.
  • Its suggested criteria for acceptance into the sandbox.
  • The need for clarity over the relationship between the sandbox and data protection impact assessments ("DPIAs").
  • The safeguards that must be established to reassure businesses over aspects of their participation in the sandbox.

What's the next step?
The ICO's initial call for views on the feasibility, scope and demand for a sandbox has now closed. The responses are now being reviewed and will inform the ICO's detailed proposal for consultation, which it expects to submit later in the year.

We have many clients working on exciting and innovative new products and services, so please contact us if you would like some assistance with ensuring that your idea stays on the right side of data protection compliance.

Useful links





EDPB indicates that ICO's guidelines on DPIAs are too stringent

Organisations can use data protection impact assessments ("DPIAs") to identify and mitigate a project's data protection risks. The General Data Protection Regulation ("GDPR"), which has been in force since 25 May 2018, mandates organisations to carry out DPIAs in specific circumstances.

During its latest meeting, the European Data Protection Board ("EDPB"), the EU privacy watchdog, adopted 22 opinions that establish common criteria for DPIA lists.

The lists were created by the national supervisory authorities ("SAs") to establish what types of processing are likely to be categorised as high-risk, and therefore require a DPIA to be carried out. The EDPB examined lists from 22 EU countries before establishing the common criteria, with the aim of providing more consistency across the EU, as required by the GDPR.

The UK list, which had been supplied by the Information Commissioner's Office ("ICO") in its guidance on DPIAs, stated that the processing of biometric, genetic or location data would automatically require a DPIA to be undertaken. However, the EDPB's opinion on the UK list disagreed, saying that processing these types of data on their own "is not necessarily likely to represent a high risk". Instead, the Board recommended that the ICO change its guidance so that for these types of data-processing, a DPIA should only be carried out when the processing is done in conjunction with at least one other criterion set out in the WP29's guidance on DPIAs, which the EDPB has endorsed.

There was further contention over employee monitoring and the use of innovative technology. The EDPB's opinion requested that the ICO amend its guidance to require the presence of two "high-risk" criteria (listed in the EDPB's guidance on DPIAs) before it is mandatory for organisations that plan to monitor employees to carry out a DPIA. Likewise, the EDPB asked the ICO to revise its guidance to refer to "innovative" rather than "new or innovative" and add that processing using innovative technology only requires a DPIA to be conducted when it is done in conjunction with at least one other criterion from the EDPB's guidance on DPIAs.

In line with Article 64(7-8) of the GDPR, the ICO must respond to the EDPB's opinion within two weeks of receiving it. The GDPR does not require SAs to amend their lists in line with the EDPB's recommendations, but if they decide not to do so, they must, within the same time period, provide the relevant grounds for their intention not to follow the EDPB's opinion.

We have created DPIA procedures for many of our clients. Please contact us if you require assistance with creating such a process or consultation on your DPIAs.

Useful links

Notes from the latest EDPB meeting

A list of the 22 opinions of the EDPB on DPIAs

The EDPB's opinion on the UK list

The ICO's current guidance on DPIAs (possibly subject to change)

The WP29's guidance on DPIAs

Article 64(7-8) of the GDPR

Tuesday, 26 June 2018

Facebook fan page case leads to new understanding of “joint controllers” concept


A recent ruling by the European Court of Justice (“ECJ”) has found that administrators of Facebook fan pages are joint controllers with Facebook for those pages.

What are joint controllers?
Article 26 of the General Data Protection Regulation (“GDPR”) states that “where two or more controllers jointly determine the purposes and means of processing, they shall be joint controllers”. The GDPR then sets out very specific obligations on joint controllers processing personal data, which must be complied with by those controllers.

There is some helpful information about joint controller relationships in the WP29 Opinion 1/2010 EU regulatory guidance. It explains that there may be various situations when data controllers are acting together and that this may lead in some circumstances to joint and several liabilities, but this is not necessarily a rule.

Guidance from the Information Commissioner’s Office (“ICO”) under the old law provided a distinction between joint controllers and controllers in common. It suggested that joint controllers would be acting together to decide the purposes and manner of data processing, whereas controllers in common would simply share a pool of personal data that they processed independently of one another.

We hope that the new European Data Protection Board (“EDPB”) will soon update the previous EU guidance on determining controller, processor and joint controller relationships and that the ICO will then follow suit.

It is our experience that most organisations find these relationships very difficult to identify and that they will therefore struggle to ensure compliance with the new more stringent GDPR obligations on joint controllers.

What are the details of the case and what’s new in relation to “joint controller” relationships?
On 5 June 2018, the ECJ delivered its verdict on a case that concerned a German company that had been using a Facebook fan page for marketing purposes. The company could obtain viewing statistics for its fan page via the Facebook Insights tool, which works by Facebook using cookies to collect personal data about visitors to the fan pages. The company operating the fan page was only provided with anonymous statistical data about visitors to its fan page, whereby it could commission Facebook to place targeted advertisements there. The company had no access to identifiable personal data.

The company had not made it clear to visitors of its page that Facebook was using cookies to gather personal data about them in order to produce statistical information and carry out targeted advertising. As a result of this, the German data protection authority (regulator) ordered the company to deactivate its fan page, but the latter took the issue to court, arguing that the data controller in this case was not itself, but Facebook Ireland. It argued this on the basis that it did not itself hold the information to identify the individuals. The German courts agreed, but asked the ECJ to consider the issues.

What were the reasons behind the ECJ’s “joint controller” verdict?
The ECJ’s verdict (which followed the previous Advocate General Bot’s opinion) concluded that the administrator of the fan page on Facebook must be regarded as being, along with Facebook Inc. and Facebook Ireland, a controller of the processing of personal data that is carried out for the purpose of compiling viewing statistics for that fan page.

The ECJ said that the fan page administrator could be a controller because:

  • It agreed to Facebook placing cookies.
  • It set processing parameters that influenced or contributed to the purposes and manner of Facebook’s processing.
  • The data in question was sensitive in terms of its privacy impact (e.g. demographic data including trends in terms of age, sex, relationship and occupation, and information on visitors’ purchases and online purchasing habits) and the ultimate purposes, i.e. targeted advertising.
  • Non-Facebook users could visit the fan page, so privacy notices were imperative.
  • The fact that the fan page administrator had no access to the personal data that Facebook obtained did not preclude it from being a data controller. The definition of “data controller” in Directive 95/46/EC does not talk about access to personal data.

What does the verdict mean for the rest of us?
The ECJ’s verdict has, no doubt, extended the interpretation in relation to which organisations can be considered controllers and indeed joint controllers. This will have a wider impact on many business relationships.

In the absence of current, clear EU/ICO guidance on this point, organisations should consider:

  • Whether their data-sharing relationships involve joint participation in a business activity that requires processing the same personal data, or alternatively simply sharing the same pool of personal data for different and distinct purposes.
  • If and to what extent any decisions are taken together by relevant parties.
  • Specific data flows in their data-sharing relationships:
    • Will the data flows always be the same or will they change in different data-sharing processes? (The latter is more likely.)
    • Is it possible to separate out specific decision-making processes and business logic in relation to different data-processing activities carried out by the respective different parties in a way that demonstrates situations where they determine the means and purposes together?
  • Carrying out data protection impact assessments (“DPIAs”) to assess data-sharing relationships. To comply with the accountability principle and the concepts of privacy by design, organisations should consider carrying out a DPIA to make their evaluation and demonstrate the factors that they have considered before coming to their conclusion and putting the appropriate compliance measures in place.
  • Carrying out a regular review/follow-up DPIA to see whether their data-processing relationships and relationships between parties change over time and therefore require a different compliance route to be followed.
All organisations running Facebook fan pages or any other social media pages should ensure that those social media pages display clear links to the organisation’s privacy policy and in particular how information obtained on that fan page may be used (including an explanation of analytics carried out, targeted advertising and cookie use, etc.).
 
Next steps
If you require assistance with reviewing or upgrading your website or corporate social media site pages for compliance, Pritchetts Law LLP would be delighted to assist. Please contact us here.