Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein – CJEU Judgment (Germany, 2018)

The company offered educational services through a fan page hosted by Facebook. As administrators, they obtained statistical information on visitors to the fan page via Facebook Insights offered by Facebook free of charge under non-negotiable conditions of use. The information was obtained using cookies, each containing a unique user code, stored by Facebook in the devices of visitors and were active for two years. The unique code could be matched with users registered on Facebook and their personal data was collected when the fan page was opened. Neither the company nor Facebook notified users/visitors of the fan page of the storing of cookies or processing of their personal data. The Independent Data Protection Centre Germany, (ULD) made a decision on 3rd November 2011 against the company ordering them to deactivate the fan page within the prescribed period or pay a penalty fine on grounds that: 1. Neither Facebook nor the company notified the users that Facebook collected Personal data of the users; 2. Facebook processed personal data of the users. The company brought a dispute against that decision arguing that it was not responsible for the processing of personal data under the data protection law. This dispute went back and forth from the Administrative Court to the Federal Court who referred the matter to the CJEU seeking clarifications on whether an administrator of a fan page hosted by a social network is a controller within the definition under Article 2 (d)of Directive 95/46. The CJEU held that the mere fact of using a social network doesn’t make the user a controller responsible for processing personal data. However, an administrator who creates a fan page, consents to the use policy, cookies policy, defines the objectives and promotes its activities has an influence on the processing of personal data for the purpose of producing a statistical report, by Facebook, on the fan page, whether anonymized or not. Thus, the administrator is a joint controller with Facebook under Article 2(d) Directive 95/46. It also held that, as a joint controller with Facebook, the administrator’s responsibility is not equal to that of Facebook because they may be involved at different stages of that processing of personal data and to different degrees.