Article 29 Working Party Provides Guidance On Data Controller/Processor Concepts

Last November in Madrid, when the 31^st International Conference of Data Protection and Privacy Commissioners adopted the “International Standards on the Protection of Personal Data and Privacy”, there was a sparkle of hope that the controller and processors concepts would not survive the upcoming review of the EU data protection framework. The Standards use the more pragmatic concepts of “responsible person” (instead of “controller”) and “processing service provider” (as opposed to “processor”).

However, on 16 February 2010, the Article 29 Working Party (WP) adopted an opinion (Opinion 1/2010) on the concepts of “controller and “processor”, in which it takes the position that there is no reason to assume that the current distinction between controllers and processors would no longer be relevant and workable. The Article 29 WP acknowledges that applying these concepts to concrete situations can be complex, which is why it is providing specific guidance in its opinion to ensure a consistent and harmonized approach throughout the EU.                        

The Article 29 WP’s opinion includes a comprehensive analysis of the controller and processor concepts as well as practical examples and rules of thumb on how to approach the concepts pragmatically. Without going into any level of detail, here are just a few of the Article 29 WP’s pearls of wisdom that can be found in the Opinion:

• In many cases the responsibility of data controller can be attributed on the basis of an assessment of the factual circumstances. Contractual terms can often clarify the issue, although they are not decisive under all circumstances. Even if a contract is silent on who is the controller, it can still contain sufficient elements to assign the responsibility of controller to the party that apparently exercises a dominant role in that regard.

• The data controller must determine the purposes and the means, i.e., the “why” and the “how” of certain processing activities. The crucial question, however, is to which level of detail somebody should determine purposes and means in order to be considered as a data controller. According to the Article 29 WP, whoever decides on the “purposes” of a data processing operation should be the controller. The data controller can delegate the determination of the “means” of the data processing, as far as technical or organizational measures are concerned. Substantial decisions that may affect the lawfulness of the data processing (e.g., how long will the data be stored) are reserved to the data controller.

• In some cases, there may be several persons or entities that determine the purposes and means of a particular data processing operation and that therefore qualify as “joint controllers”. Although contractual arrangements can be useful in assessing joint control, they should always be checked against the factual circumstances of the parties’ relationship. Parties acting jointly also have a certain degree of flexibility in sharing and allocating data protection obligations and responsibilities, as long as they are compliant.

• A data processor is a separate legal person or entity with respect to the data controller and processes personal data on the data controller’s behalf. The data processor is called on to implement the data controllers’ instructions at least with regard to the purposes and the essential means of the processing. The lawfulness of the processors’ data processing therefore depends on the specific mandate given by the controller. A data processor exceeding that mandate could be viewed as assuming the responsibilities of a (joint) controller.

The Article 29 WP’s opinion provides useful explanations and guidance in general, and its analytical approach is helpful. It is perhaps regrettable that the many examples in the opinion do not always include in-depth discussions of the specific issues raised (for instance, data processing by recruitment agencies or in the context of clinical trials).              

Authored by HL Chronicle of Data Protection Team.