Responsibility for Data Protection in a Networked World – On the Question of the Controller, ‘Effective and Complete Protection’ and Its Application to Data Access Rights in Europe
37 Pages Posted: 22 Oct 2018 Last revised: 23 Oct 2018
Date Written: September 28, 2018
In the current networked world almost no system in which personal data is processed stands on its own. For example: Websites and mobile applications integrate third party services for behavioral targeting, user analytics, maps integration and many others functionalities. Governments build central infrastructures to share data efficiently between different branches of government and with other organizations.
This paper analyses the current system in Europe for determining who is (or better: are) responsible for observing data protection obligations in such networked service settings. In doing so we address the problems (1) of ambiguity in applying the concept of data controller in networked settings, and (2) of insufficiencies in the framework for establishing the extent of the responsibilities in situations of joint control. We look at how both the Working Party and the GDPR address these problems, but fall short of addressing them completely. And how the ECJ tries to circumvent these problems by applying the principle of “effective and complete protection”.
We analyse joint responsibility in the wake of Wirtschaftsakademie, a case recently decided by the European Court of Justice, in which a Facebook fan page administrator is found to be a joint-controller and therefore jointly responsible together with Facebook. Following this decision, there are many more situations of joint control than previously thought and part of the responsibility for compliance with data protection legislation and risk of enforcement measures is moved to those who integrate external services. This will change the incentive structure in such a way that joint-controllers will place a much higher value on data protection.
Based on examples taken from our earlier empirical work on the right of access, we analyze some of the practical implications of the newly emerging data responsibility infrastructure.
Keywords: GDPR, Data Controller, Responsibility
Suggested Citation: Suggested Citation