Last week we reported on the Belgian Privacy Commission's (BPC) recommendation asking Facebook to stop tracking non members and to become more transparent about their use of cookies.

The following key points of law were considered within the BPC's recommendation:

  1. Facebook Inc. (and not Facebook Ireland) was viewed as being the "data controller", as Facebook Ireland was deemed to lack the authority to "take independent decisions when determining the resources relating to the processing of the personal data";
  2. Facebook Belgium was classed as an "establishment" under article 4.i.a of Directive 95/46/EC (governing the application of National Law), as it is "inextricably linked" to Facebook Inc.'s activities; and
  3. Applying the principles of the ECJ’s Costeja “Right to be Forgotten” judgment, the Privacy Commission concluded that Facebook Belgium is an "establishment" of Facebook Inc. because it considered its activities to be “inextricably linked” to Facebook Inc.’s activities.