Article 26 GDPR
Legal Text
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
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Commentary
Overview
Article 26 of the GDPR aims to provide clarity on how responsibility should be allocated in instances where there is more than one data controller. The purpose of this is to ensure that controllers comply with their obligations in a way that is transparent towards the data subject, and in a way that makes it easier for the data subject to exercise their rights against each controller.
Although the notion of Joint Controllership did not exist in the Data Protection Directive (95/46/EC), the GDPR’s predecessor, its history can be traced back to the Modernized Convention 108 for the Protection of Individuals with Regard to the Processing of Personal Data, which referred to the notion of ‘joint controllers’ in in Article 2. Historically, Member States have also had varying approaches towards Joint Controllership on a national level: for instance, while the United Kingdom referred to notions of both joint controllers and controllers in section 1(1) of the UK Data Protection Act 1998, Poland on the other hand, did not recognize the concept of Joint Controllership in law, but recognized it in practice by national Data Protection Authorities.
This commentary will subsequently explore the different elements of Article 26 and seek to provide some clarity on how it is operationalized in practice.
Article 26 (1) GDPR
Jointly
The term “jointly” must be interpreted as meaning “together with” or “not alone”.[1] In other words, when determining the existence of joint controllership, attention must be paid to whether or not multiple entities determine the purposes and means of processing in a joint manner. This assessment of joint participation should be carried on a factual, rather than formal, basis.
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. [2] This can take place through acts such as taking a common decision together, or taking decisions separately that complement one another. [3] 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.
On a more specific note, the fact that one of the parties may not have access to the personal data that is being processed is not enough to exclude it from joint controllership. This was confirmed in Wirtschaftsakademie[4], where the CJEU found that an operator of a social network and an administrator of a fan page hosted on that network were both jointly responsible for the processing of the personal data of visitors who came to that page, even if the administrator of the fan page didn’t have access to the personal data in question. Instead, the ‘contribution’ of the administrator came from the act of defining the parameters of the fan-page. However, the CJEU did clarify that although the operator of the social network and the administrator of the fan page were joint controllers, it did not necessarily follow that both controllers had equal shares of responsibility, because the two controllers “may be involved at different stages of that processing of personal data and to different degrees”[5].
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.[6] However, from a practical standpoint, it is questionable how clear this distinction is, as it may not always be easy to determine whether a purpose of processing is for unilateral or bilateral purposes.
With regards to who can be a joint controller, the Article 29 Working Party has stated that even users of social networking sites can themselves become joint controllers when their purposes of processing personal data are no longer for “purely personal or household activities”. [7] In other words, an individual can too be a joint controller when they engage in processing for a commercial purpose.
Determining the purposes and means of processing
A second requirement for joint controllership is that the multiple controllers must jointly determine the purposes and means of processing. However, the CJEU clarified in Fashion ID[8] that an entity will be considered as a joint controller only with respect to the operations for which it determines, together with others, the purposes and means of processing.[9] This means that the responsibility of each controller is limited to the set of operations it decides upon.
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. However, 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”[10]. 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[11].
Jointly determining the purposes and means of processing also does not necessarily mean that two controllers must have the same purpose for the processing. Joint controllership may still exist in situations where the purposes pursued are closely linked or complementary, but not identical. This may 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 Fashion ID. Similarly, in Wirtschaftsakademie, the processing of personal data through statistics of a visitor fan page enabled both Facebook to improve its advertising system, and the administrator of the fan page to obtain statistics on its promotional activity.[12] In this instance, each entity pursued its own interests, but both parties participated in determining the purposes of processing of the personal data of the visitors to the fan page, which were linked. [13]
However, 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. Similarly, the use of joint infrastructure or a common data processing system will also 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.[14]
Joint Controllership arrangement
Article 26 imposes on the joint controllers an obligation to have an arrangement that clearly allocates the roles of each controller.
This arrangement should reflect the responsibilities of each controller, and in particular, their responsibilities with regards to the rights of data subjects under Article 13 and 14 of the GDPR. The ‘essence’ of this arrangement should be made available to the data subject, in order to provide transparency on processing operations. In particular, 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. However, if the joint controllership arrangement presented to the data subject is flawed or does not represent reality, the factual circumstances will prevail.[15] This may happen, for instance, in situations where the processor goes beyond their contractual obligations to process data on behalf of a controller, and proceeds to determine the means and purposes of processing themselves. In such a situation, even though the arrangement may label the processor as only processing data, the factual circumstances are such that the processor is indeed acting as a controller, and therefore may be liable as a joint controller.
However, there is an exception to the requirement to have a joint controllership arrangement: in instances where the responsibilities of the controller are determined by Union or Member State law, an arrangement between the controllers is not necessary. [16]
With regards to the content of the joint controllership arrangement, joint controllers may wish to specify their respective responsibilities towards implementing general data protection principles (Article 5), security measures (Article 32), and transfers of data to third countries (Chapter V). 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[17]. Furthermore, each controller must also ensure respect for the Purpose Limitation principle (Article 5(1)(b) GDPR) and guarantee that data is not further processed in a manner that is incompatible with the purposes for which it was originally collected. [18]
It should be noted, that under Article 26(3), 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.
Conclusion
The provision on Joint Controllership is one step towards establishing greater transparency over the complex personal data processing ecosystem. Despite being a new provision in scope, Article 26 goes a substantial way towards empowering the data subject by requiring transparency and accountability from controllers, especially in instances where multiple controllers engage in complex processing operations.
[1] European Data Protection Board (EDPB), Guidelines 07/2020 on the concepts of controller and processor in the GDPR, September 2020, pg. 17.
< https://edpb.europa.eu/sites/edpb/files/consultation/edpb_guidelines_202007_controllerprocessor_en.pdf>
[2] EDPB, Guidelines 07/2020, pg. 1.
[3] Ibid.
[4] Wirtschaftsakademie, C-210/16, ECLI:EU:C:2018:388, para. 38.
[5] Wirtschaftsakademie, C-210/16, para. 43.
[6] Van Alsenoy 2012, pg. 24
[7] Article 29 Working Party (A29WP), Opinion 1/2010 on the concepts of "controller" and "processor", February 2010, pg. 21. < https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2010/wp169_en.pdf>
[8] Fashion ID, C‑40/17, ECLI:EU:C:2019:629
[9] Hahn I, The Fashion ID judgment and its impact on the rights of data subjects, September 2019,
< https://medium.com/personaldata-io/fashion-id-and-rights-of-data-subjects-60d02ffca17d>
[10] Fashion ID, para. 85.
[11] Hahn I, The Fashion ID judgment and its impact on the rights of data subjects.
[12] Judgment in Wirtschaftsakademie, C-210/16, ECLI:EU:C:2018:388, paragraph 34.
[13] Judgment in Wirtschaftsakademie, C-210/16, ECLI:EU:C:2018:388, paragraph 39.
[14] EDPB, Guidelines 07/2020, pg. 20.
[15] Kuner C, The EU General Data Protection Regulation (GDPR): A Commentary, Oxford University Press 2020, pg. 587.
[16] Ibid.
[17] EDPB, Guidelines 07/2020, pg. 42.
[18] Ibid.
Decisions
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