Privacy Guidelines on Data Processor and Data Controller
Guidelines 07/2020 on the concepts of controller and processor in the GDPR
Subparagraph 220.127.116.11 Jointly determined means
61. Joint controllership also requires that two or more entities have exerted influence over the means of the processing. This does not mean that, for joint controllership to exist, each entity involved needs in all cases to determine all of the means. Indeed, as clarified by the CJEU, different entities may be involved at different stages of that processing and to different degrees. Different joint controllers may therefore define the means of the processing to a different extent, depending on who is effectively in a position to do so.
62. It may also be the case that one of the entities involved provides the means of the processing and makes it available for personal data processing activities by other entities. The entity who decides to make use of those means so that personal data can be processed for a particular purpose also participates in the determination of the means of the processing.
63. This scenario can notably arise in case of platforms, standardised tools, or other infrastructure allowing the parties to process the same personal data and which have been set up in a certain way by one of the parties to be used by others that can also decide how to set it up. The use of an already existing technical system does not exclude joint controllership when users of the system can decide on the processing of personal data to be performed in this context.
64. As an example of this, the CJEU held in Wirtschaftsakademie that the administrator of a fan page hosted on Facebook, by defining parameters based on its target audience and the objectives of managing and promoting its activities, must be regarded as taking part in the determination of the means of the processing of personal data related to the visitors of its fan page.
65. Furthermore, the choice made by an entity to use for its own purposes a tool or other system developed by another entity, allowing the processing of personal data, will likely amount to a joint decision on the means of that processing by those entities. This follows from the Fashion ID case where the CJEU concluded, that by embedding on its website the Facebook Like button made available by Facebook to website operators, Fashion ID has exerted a decisive influence in respect of the operations involving the collection and transmission of the personal data of the visitors of its website to Facebook and had thus jointly determined with Facebook the means of that processing.
66. It is important to underline that the use of a common data processing system or infrastructure will not in all cases lead to qualify the parties involved as joint controllers, in particular where the processing they carry out is separable and could be performed by one party without intervention from the other or where the provider is a processor in the absence of any purpose of its own (the existence of a mere commercial benefit for the parties involved is not sufficient to qualify as a purpose of processing).
Example: Travel agency
A travel agency sends personal data of its customers to the airline and a chain of hotels, with a view to making reservations for a travel package. The airline and the hotel confirm the availability of the seats and rooms requested. The travel agency issues the travel documents and vouchers for its customers. Each of the actors processes the data for carrying out their own activities and using their own means. In this case, the travel agency, the airline and the hotel are three different data controllers processing the data for their own purposes and there is no joint controllership. The travel agency, the hotel chain and the airline then decide to participate jointly in setting up an internet-based common platform for the common purpose of providing package travel deals. They agree on the essential means to be used, such as which data will be stored, how reservations will be allocated and confirmed, and who can have access to the information stored. Furthermore, they decide to share the data of their customers in order to carry out joint marketing actions. In this case, the travel agency, the airline and the hotel chain, jointly determine why and how personal data of their respective customers are processed and will therefore be joint controllers with regard to the processing operations relating to the common internet-based booking platform and the joint marketing actions. However, each of them would still retain sole control with regard to other processing activities outside the internet-based common platform.
Example: Research project by institutes
Several research institutes decide to participate in a specific joint research project and to use to that end the existing platform of one of the institutes involved in the project. Each institute feeds personal data it holds into the platform for the purpose of the joint research and uses the data provided by others through the platform for carrying out the research. In this case, all institutes qualify as joint controllers for the personal data processing that is done by storing and disclosing information from this platform since they have decided together the purposeof the processing and the means to be used (the existing platform). Each of the institutes however is a separate controller for any other processing that may be carried out outside the platform for their respective purposes.
Example: Marketing operation
Companies A and B have launched a co-branded product C and wish to organise an event to promote this product. To that end, they decide to share data from their respective clients and prospects database and decide on the list of invitees to the event on this basis. They also agree on the modalities for sending the invitations to the event, how to collect feedback during the event and follow-up marketing actions. Companies A and B can be considered as joint controllers for the processing of personal data related to the organisation of the promotional event as they decide together on the jointly defined purpose and essential means of the data processing in this context.
Example: Clinical Trials
A health care provider (the investigator) and a university (the sponsor) decide to launch together a clinical trial with the same purpose. They collaborate together to the drafting of the study protocol (i.e. purpose, methodology/design of the study, data to be collected, subject exclusion/inclusion criteria, database reuse (where relevant) etc.). They may be considered as joint controllers, for this clinical trial as they jointly determine and agree on the same purpose and the essential means of the processing. The collection of personal data from the medical record of the patient for the purpose of research is to be distinguished from the storage and use of the same data for the purpose of patient care, for which the health care provider remains the controller. In the event that the investigator does not participate to the drafting of the protocol (he just accepts the protocol already elaborated by the sponsor), and the protocol is only designed by the sponsor, the investigator should be considered as a processor and the sponsor as the controller for this clinical trial.
Company X helps Company Y in recruiting new staff – with its famous value-added service “global matchz”. Company X looks for suitable candidates both among the CVs received directly by Company Y and those it already has in its own database. Such database is created and managed by Company X on its own. This ensures that Company X enhances the matching between job offers and job seekers, thus increasing its revenues. Even though they have not formally taken a decision together, Companies X and Y jointly participate to the processing with the purpose of finding suitable candidates based on converging decisions: the decision to create and manage the service “global matchz” for Company X and the decision of Company Y to enrich the database with the CVs it directly receives. Such decisions complement each other, are inseparable and necessary for the processing of finding suitable candidates to take place. Therefore, in this particular case they should be considered as joint controllers of such processing. However, Company X is the sole controller of the processing necessary to manage its database and Company Y is the sole controller of the subsequent hiring processing for its own purpose (organisation of interviews, conclusion of the contract and management of HR data).