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When a ‘Like’ Is Not a ‘Like’: A New Fragmented Approach to Data Controllership
Author(s) -
Zalnieriute Monika,
Churches Genna
Publication year - 2020
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/1468-2230.12537
Subject(s) - directive on privacy and electronic communications , transparency (behavior) , directive , data protection directive , data protection act 1998 , european union , general data protection regulation , commodification , consistency (knowledge bases) , internet privacy , digital rights , citizenship , computer science , political science , business , european union law , law , world wide web , computer security , economics , artificial intelligence , international trade , market economy , programming language , politics
In Fashion ID , the Court of Justice of the European Union (‘CJEU’) held that an operator of a website featuring a Facebook ‘Like’ button is a data controller under EU Directive 95/46 (‘Directive’) jointly with Facebook in respect of the collection and transmission of the personal data of website visitors to Facebook, but Facebook alone is a data controller for any subsequent data processing. While the CJEUs expansive interpretation of joint controllership aims to leave ‘no gaps’ in the protection of individuals, we question whether the proposed solution to ‘fragment’ controllership into different stages of processing helps to achieve that goal. We argue that CJEUs ‘fragmented’ approach is incompatible with the GDPR, as it does not reveal the intended purposes of data processing, and thus negates informed and specific consent. We suggest that such ‘fragmentation’ undermines the consistency, predictability and transparency of EU data protection law by obscuring the pervasiveness of data commodification in the digital economy.