On 5 June 2018, the European Court of Justice ("ECJ") decided on several preliminary questions that were raised in an administrative proceeding between the German Data Protection Authority ("GDPA") and Wirtschaftsakademie Schleswig-Holstein GmbH ("Wirtschaftsakademie"), a German educational services provider that offers its services through a Facebook fan page. In its decision, the ECJ held, among other things, that Wirtschaftsakademie qualifies as a data controller ex Article 2 under d Directive 95/46/EC[1] ("Privacy Directive").

In this blog post, we first summarise the contested practice. Secondly, we discuss the ECJ's interpretation of the notion "data controller" and its reasoning as to why Wirtschaftsakademie qualifies as such a data controller; we do not touch upon the other preliminary questions. Finally, we discuss this case's impact under Regulation (EU) 2016/679[2] ("GDPR").

Wirtschaftsakademie's contested practice

By creating its Facebook fan page, Wirtschaftsakademie concluded a specific contract between itself and Facebook, which allowed Facebook to process personal data of visitors to the fan page . According to the ECJ's decision, Facebook primarily processed the visitors' personal data by placing cookies on their devices, which remained active for two years if not deleted, with the purpose to store information on their web browsers. It further holds that, in practice, Facebook mainly used the cookies when a person visited a Facebook service, a service provided by a Facebook subsidiary or a service provided by a third party that uses Facebook services. Moreover, the ECJ holds that other entities – e.g. Facebook partners and third parties – could also use cookies on the Facebook services to provide their own services to the actual Facebook platform and to the businesses that advertise on that platform. In particular, Facebook processes personal data to improve the advertising system that is offered on the Facebook platform and to provide administrators with statistics about their fan page visitors to enable them to create a more relevant fan page.

The GDPA ordered Wirtschaftsakademie to deactivate the fan page because neither Wirtschaftsakademie nor Facebook informed visitors of the fan page that Facebook collected and processed the data as described above. Subsequently, Wirtschaftsakademie brought an administrative action against the GDPA's decision, and argued that it does not qualify as data controller ex Article 2 under d Privacy Directive and that the GDPA therefore should have acted directly against Facebook. The administrative proceeding eventually led to the German Federal Administrative Court referring six questions to the ECJ.

ECJ's interpretation of "data controller"

First, the ECJ holds that Facebook primarily determined the purposes and means of the processing of the personal data, and that it therefore qualifies as data controller.

The ECJ continues and holds that the administrator of a Facebook fan page qualifies as a data controller because:

  1. by creating a fan page, it provides Facebook with the opportunity to place cookies on visitors' devices; and
  2. it defines the parameters and criteria that Facebook uses to create the fan page specific statistics.

Subsequently, the ECJ rules that the Wirtschaftsakademie took part in the determination of the purposes and means of the processing of the personal data and that it therefore qualifies as a joint data controller with Facebook under Article 2 (d) of the Privacy Directive. Wirtschaftsakademie and Facebook are thus both responsible for properly informing visitors about the processing of their personal data.

Relevance under the GDPR

Under the GDPR, the definition of "data controller" remains unchanged. Therefore, the ECJ's interpretation is also relevant under the current legal framework. Consequently, companies that offer similar services and companies that use those similar services, e.g. companies operating a YouTube channel, should ensure that their visitors are properly informed about the processing of their personal data. It is interesting to note that Facebook has, as of yet, refrained from amending its privacy policy. It will be interesting to see what, if any, actions Facebook takes in response to this decision, particularly considering the recent Cambridge Analytica scandal and the astronomic fines data protection authorities may levy under the GDPR.

This blog was written together with Jurriaan van Mil, a student trainee at Stibbe.