Article 26 GDPR

← Article 26 - Joint controllers →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 26 - Joint controllers

1. Where two or more controllers jointly determine the purposes and means of processing, they shall be joint controllers. They shall in a transparent manner determine their respective responsibilities for compliance with the obligations under this Regulation, in particular as regards the exercising of the rights of the data subject and their respective duties to provide the information referred to in Articles 13 and 14, by means of an arrangement between them unless, and in so far as, the respective responsibilities of the controllers are determined by Union or Member State law to which the controllers are subject. The arrangement may designate a contact point for data subjects.

2. The arrangement referred to in paragraph 1 shall duly reflect the respective roles and relationships of the joint controllers vis-à-vis the data subjects. The essence of the arrangement shall be made available to the data subject.

3. Irrespective of the terms of the arrangement referred to in paragraph 1, the data subject may exercise his or her rights under this Regulation in respect of and against each of the controllers.

Relevant Recitals

Recital 58: Modalities for Transparent Information Provision

The principle of transparency requires that any information addressed to the public or to the data subject be concise, easily accessible and easy to understand, and that clear and plain language and, additionally, where appropriate, visualisation be used. Such information could be provided in electronic form, for example, when addressed to the public, through a website. This is of particular relevance in situations where the proliferation of actors and the technological complexity of practice make it difficult for the data subject to know and understand whether, by whom and for what purpose personal data relating to him or her are being collected, such as in the case of online advertising. Given that children merit specific protection, any information and communication, where processing is addressed to a child, should be in such a clear and plain language that the child can easily understand.

Recital 79: Clear Allocation of Responsibilities

The protection of the rights and freedoms of data subjects as well as the responsibility and liability of controllers and processors, also in relation to the monitoring by and measures of supervisory authorities, requires a clear allocation of the responsibilities under this Regulation, including where a controller determines the purposes and means of the processing jointly with other controllers or where a processing operation is carried out on behalf of a controller.

Commentary on Article 26

Article 26 GDPR goes a substantial way towards empowering the data subject by requiring transparency and accountability where multiple controllers jointly engage in processing operations. In particular, Article 26 GDPR requires joint-controllers to determine and allocate their respective data processing and GDPR responsibilities by means of an arrangement. The essence of the arrangement shall be made available to the data subjects. This should make it easier for them to gain awareness about the processing and exercise their rights against each controller.

(1) Joint Controllership

Under Article 26(1) GDPR, joint controllership takes place when two or more controllers "jointly determine the purposes and means of processing".

The term “jointly” must be interpreted as meaning “together with” or “not alone”. In other words, when determining the existence of joint controllership, attention must be paid to whether or not multiple entities act in a joint manner. This assessment of joint participation should be carried on a factual, rather than formal basis.

In particular, when assessing whether there is joint participation by two or more controllers, it is necessary to look at whether there is decisive influence by the controllers over when and how processing takes place. Typically, two controllers will be held to be “jointly” controlling in instances where they together determine the purposes and means of processing. The EDPB has highlighted that an important criterion for joint controllership is the notion of an inextricable linkage between the processing activities of two parties. This can take place through acts such as taking a common decision together, or taking decisions separately that complement one another. This may also happen in instances where there is a mutual benefit that arises from the same processing operation, like an economic benefit, which was the case in the Fashion ID decision.

Jointly determining the purposes and means of processing does not necessarily mean that two controllers must have the same purpose for the processing. Joint controllers are also not required to exert influence over the purposes and means of processing at the same point in time. Different controllers may be involved at different times and stages of processing, and to different degrees. The use of joint infrastructure or a common data processing system will not automatically result in joint controllership, especially in instances where the processing is carried out separately and the operations of the parties do not necessarily overlap.

One consequence of this approach is that liability of a controller will be restricted to the processing of the personal data for which it “actually determines the purposes and means of processing”. This implies, prima facie, that a data subject cannot hold a controller to account for data processing beyond that which the controller is involved with. This means that the responsibility of each controller is limited to the set of operations it decides upon.

This does not mean, however, that collaboration between two controllers will always result in joint controllership. In instances where controllers process data independently of each other and for their own purposes, they will not be held to be joint controllers. merely a mutual benefit to processing in itself is insufficient to establish joint controllership. If an entity processes data but does not pursue its own purposes in relation to the processing activity, it will merely be a processor, rather than a joint controller.

(2) Joint Controllership Arrangement

Article 26 GDPR imposes on the joint controllers an obligation to have an arrangement that clearly allocates the roles of each controller. In other words, joint controllers need to set "who does what" according to the factual circumstances of the case.

This arrangement, which in theory does not require any form, should reflect the responsibilities of each controller, and in particular, their responsibilities with regards to the rights of data subjects and the information provided under Articles 13 and 14 GDPR. However, the use of the terms “in particular” indicates that the obligations subject to the allocation of responsibilities for compliance by each party involved as referred in this provision are non-exhaustive.

It follows that the distribution of the responsibilities for compliance among joint controllers is not limited to the topics referred in Article 26(1) but extends to other controller’s obligations under the GDPR. Joint controllers may therefore wish to specify their respective responsibilities towards implementing general data protection principles (Article 5 GDPR), security measures (Article 32 GDPR), and transfers of data to third countries (Chapter V of the GDPR). Other topics that could also be included, depending on what is at stake with the processing, and what the intention of the parties is with regards to the processed data. However, both controllers always have a duty to ensure that they both have a legal basis for processing.

The "essence" of the arrangement should be made available to the data subject, in order to provide transparency on processing operations. The EDPB recommends that the essence cover "at least all the elements of the information referred to in Articles 13 and 14 that should already be accessible to the data subject, and for each of these elements, the arrangement should specify which joint controller is responsible for ensuring compliance with these elements". Moreover, the data subject should be able to understand which data controller serves as a point of contact for the exercise of their data subject rights.

(3) Effects on the Rights of Data Subjects

It should be noted, that under Article 26(3) GDPR, a data subject is not bound by the terms of the joint controller arrangement, and may actually exercise their rights against each of the joint data controllers. This allows for further empowerment of the data subject. For example, "in case of joint controllers established in different Member States, or if only one of the joint controllers is established in the Union, the data subject may contact, at his or her choice, either the controller established in the Member State of his or her habitual residence or place of work, or the controller established elsewhere in the EU or in the EEA".

Decisions

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