Category Archives: facebook

ICO not compliant with post-Schrems II data protection law?

In which I finally receive a reply to my complaint about ICO’s Facebook page.

The issue of the transfer of personal data to the US has been the subject of much debate and much litigation. In 2015 the Court of Justice of the European Union (CJEU) struck down one of the then key legal mechanisms (“Safe Harbor”) for doing so. And in 2020 the CJEU did so with its successor, “Privacy Shield”. Both cases were initiated by complaints by lawyer and activist Max Schrems, and focused on the transfer of data from the EU to the US by Facebook.

Put simply, European data protection law, in the form of the GDPR and (as we must now talk about the UK in separate terms) UK data protection law, in the form of UKGDPR, outlaw the transfer of personal data to the US (or any other third country), unless the level of protection the data would receive in the EU, or the UK, is “not undermined” (see Chapter V of and recital 101 of GDPR/UKGDPR).

In “Schrems II” – the 2020 case – the CJEU not only struck down Privacy Shield – it effectively also laid down rules which needed to be followed if the alternative mechanisms, for instance using “standard contractual clauses” were to be used for transfers of personal data. Following the judgment, the European Data Protection Board (EDPB) issued guidance in the form of FAQs, which recommended an “assessment, taking into account the circumstances of the transfers, and supplementary measures you could put in place”. The EDPB guidance was subsequently endorsed by the UK’s own Information Commissioner’s Office (ICO)

The EDPB has recommended that you must conduct a risk assessment as to whether SCCs provide enough protection within the local legal framework, whether the transfer is to the US or elsewhere

What struck me as odd in all this is that the ICO themselves have a Facebook page. Given that Facebook’s own data governance arrangements involve the transfer of EU and UK users’ data to the US, and given that ICO don’t just operate their page as a newsletter, but actively encourage users to comment and interact on their page, it seemed to me that ICO were enabling the transfer of personal data by Facebook to the US. But even further than that, another CJEU judgment has previously made clear that operators of corporate Facebook pages may well function as a controller under the GDPR/UKGDPR, where they set parameters on the page. The Wirtschaftsakademie case held that – in the case of someone operating a “fan page”

While the mere fact of making use of a social network such as Facebook does not make a Facebook user a controller jointly responsible for the processing of personal data by that network, it must be stated, on the other hand, that the administrator of a fan page hosted on Facebook, by creating such a page, gives Facebook the opportunity to place cookies on the computer or other device of a person visiting its fan page, whether or not that person has a Facebook account.

By extension, it seemed to me, the ICO were in this position with their page.

So I put the point to them. After four months, and some chasing, I received a reply which not only confirmed my understanding that they are, and accept that they are, a controller, but that, nearly a year on from the Schrems II decision, they have not finished reviewing their position and have not updated their privacy notice to reflect their controller status in respect of their Facebook processing. (They also say that their legal basis for processing is “Article 6 (1) (e) of UK GDPR, public task” because “as a regulator we have a responsibility to promote good practice and engage with the public at large about data protection issues via commonly used platforms”, but I’d observe that they fail to give any attention to the proportionality test that reliance on this condition requires, and fail to point to the justification in domestic law, as required by Article 6.)

What the ICO response doesn’t do is actually respond to me as a data subject in respect of my complaint nor explain how they are complying with the international data transfer provisions of Chapter V of the GDPR/UKGDPR, and whether they have conducted any sort of transfer impact assessment (one presumes not).

As I said in my original complaint to ICO, I am aware that I might be seen as being mischievous, and I’m also aware I might be seen as having walked ICO into a trap. Maybe I am, and maybe I have, but there’s also a very serious point to be made. The cost to UK business of the Schrems II decision has been enormous, in terms of the legal advice sought, the internal governance reviews and risk assessments undertaken, and the negotiating or novation of contracts. At the same time the business and legal uncertainty is significant, with many wondering about their exposure to legal claims but also (and especially) to regulatory enforcement. If, though, the regulator is not complying with the relevant law, ten months on from the judgment (and five months on from my raising it with them as a concern) then what are controllers meant to do? And where do they turn to for guidance on the regulatory approach?

THE ICO RESPONSE

Firstly, it may be helpful to explain that following the findings of the CJEU in Wirtschaftsakademie, we started a review of the transparency information we provide to visitors of the page. The review was delayed when Schrems11 decision was issued as we needed to consider the impact of the judgement on any transfer element to the US.

We agree that as the Facebook page administrator, we are processing personal data of the visitors of our page and therefore we are controllers for this information. We process the names of the users as they appear on their Facebook profiles and any personal data they may share through their comments on our posts or via messages to us. We process this information in reliance on Article 6 (1) (e) of UK GDPR, public task. We consider that, as a regulator we have a responsibility to promote good practice and engage with the public at large about data protection issues via commonly used platforms.

For the cookies and similar technologies, Facebook is responsible for setting the cookies, when you visit our Facebook page.

We also receive anonymous information from Facebook in the form of aggregate statistics of all those who visit our page, regardless of whether they have a Facebook account or not. In line with the findings of the CJEU in Wirtschaftsakademie we are joint controllers with Facebook for this information. We process this information under Article 6 (1) (e) as well. The Insights include information on page viewings, likes, sharing of posts, age range, the device used and how it was accessed and breakdown of demographics. All Insights are received from Facebook by the ICO in aggregate format. Our PN will updated shortly to reflect the above information.

Like other regulators, the ICO is currently reviewing its position on international transfers following the judgment in Schrems II. As part of that review, it will, amongst other things, consider the questions that you have raised about the ICO’s use of Facebook. The ICO intends to publish its guidance on how UK organisations should address the question of international transfers, in due course, and will act in accordance with its guidance. That work is still in progress, and it will be published in due course.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under adequacy, data sharing, EDPB, facebook, GDPR, Information Commissioner, international transfers, privacy notice, privacy shield, safe harbor, Schrems II, UK GDPR

The ICO Facebook Page – some questions to ICO

(NON-)UPDATE 03.04.21: I’ve still had no response to my complaint on this, after almost four months. I’ve asked the ICO’s Data Protection Officer to escalate it.

(NON-)UPDATE 17.02.21: a couple of people have asked me what the ICO’s response to this was. Good question – and I haven’t had one yet. I had an email at the start of January apologising for the delay in replying, but nothing since then. I’ve chased. END UPDATE

For some time now I’ve wondered how the Information Commissioner’s Office (ICO) complies with data protection law when operating its Facebook page. It’s not a challenge unique to ICO – anyone running a corporate page is likely to be faced with similar challenges. However, as the UK’s supervisory authority under Article 51 of the GDPR (or, from 1 January 2021, under Article 51 of the UK GDPR, the person responsible for monitoring the application of the UK GDPR), the ICO should, understandably, be looked to as an exemplar.

With this in mind, I have raised an enquiry/complaint with the ICO, and will, of course, update this blog when I get a response.

I wish to raise an issue with you regarding your compliance with, at least, Articles 5(1)(a)(b)(c) and (f) of the GDPR.

I note that you operate a Facebook organisation page: https://www.facebook.com/ICOnews (the “ICO Facebook Page”), on which you invite and respond to comments. Following the findings of the Court of Justice of the European Union (CJEU) in Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v Wirtschaftsakademie Schleswig-Holstein GmbH (Case C‑210/16), you are a joint controller with Facebook for the purposes of the processing of – at least – the personal data of those who comment on the ICO Facebook Page (the “Facebook data”). I am one of those.

I also note that in your “ICO Privacy Notice“, you do not state, in respect of your processing of the Facebook data, that you are a controller, although you do, rather cryptically, say “We see all this information [sent to us via social media] and decide how we manage it”, but you otherwise appear to disavow controller status when you say “When contacting the ICO through a social media platform, we suggest you also familiarise yourself with the privacy information of that platform.” This is, I would suggest, an abrogation of your obligations under Article 13 GDPR.

Following the findings of the CJEU in Wirtschaftsakademie it can be said that the creation of an organisation page on Facebook involves the definition of parameters by the administrator which has an influence on the processing of personal data for the purpose of, at least, permitting visitor comments or visitor interactions, such as clicking “like” buttons. Consequently, the administrator of a Facebook organisation page such as the ICO Facebook Page contributes to the processing of the personal data of visitors to its page.

I assert that you process, as a controller, my personal data as a person who has commented on the ICO Facebook Page. I also believe that, as a controller, you are involved in the transfer of the Facebook data, which must be taken to include my personal data, to a third country, namely, the United States (Facebook itself says that information controlled by Facebook Ireland (which it sees as the primary controller for the processing of personal data on UK Facebook pages) will be transferred or transmitted to, or stored and processed in, the United States). Facebook appears to effect such transfers by means of standard data protection clauses approved by the European Commission (https://www.facebook.com/help/566994660333381).

Please could you inform me whether:

1) you agree that you are controller (jointly or severally) with Facebook for the processing of my personal data when I comment on your Facebook page?

2) you take the view more generally that you are controller (jointly or severally) with Facebook for the processing of my personal data when I visit your Facebook page (for instance for the processing involved in the placing of cookies and similar technologies)?

3) as a controller (assuming you accept that you are one) you are transferring my personal data out of the EEA?

4) if the answer to 3) is “yes”, how you are complying with conditions laid down in Chapter 5 of GDPR?

I appreciate this might appear to be a flippant or mischievous matter, but I assure you of my good faith and keen interest. I appreciate that ICO has a general task to promote public awareness and understanding of the risks, rules, safeguards and rights in relation to processing. It would be helpful, when answering this enquiry, if you could say whether you take the view that you cannot adequately perform this task without using Facebook to do so.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under Data Protection, facebook

Schrems II – what now?

A piece I have written with my Mishcon colleague Adam Rose, looking at the issues for businesses involved in international transfers (esp. to the US).

Make no mistake – the effect of Schrems II is to make bulk/regular transfers of personal data to the US problematic (putting it at its lowest). It arguably has the same effect in respect of transfers to most, if not all, third countries.

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Filed under adequacy, Data Protection, data security, Europe, facebook, GDPR, Information Commissioner, national security, privacy shield

Schrems II – this time it’s serious

As soon as judgment came out, my Mishcon de Reya colleague Adam Rose and I recorded our initial reactions to the CJEU’s decision in Schrems II. Here’s the link to the recording. Excuse my lockdown locks.

Some takeaways

  • The EU-US Privacy Shield arrangement for transferring personal data to the US is declared invalid.
  • Parties using Standard Contractual Clauses to transfer personal data from the EEA to countries outside must not do so if, in their assessment, the recipient country doesn’t provide an adequate level of protection. There must now be serious questions as to whether any transfers to the US can be valid.
  • The Binding Corporate Rules regime used by some of the world’s biggest international groups must now also be open to challenge.
  • Data Protection Authorities (such as the ICO) must intervene to stop transfers under SCCs which are made to countries without an adequate level of protection.
  • Post-Brexit UK may be seen as an attractive place for US companies to base operations, but there may well be further legal challenges to such arrangements.

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Filed under adequacy, Data Protection, Directive 95/46/EC, Europe, facebook, GDPR, Information Commissioner, Ireland, national security, privacy shield, surveillance

We’re looking into it

The news is awash with reports that the UK Information Commissioner’s Office (ICO) is “opening an investigation” into Facebook’s rather creepy research experiment, in conjunction with US universities, in which it apparently altered the users’ news feeds to elicit either positive or negative emotional responses. Thus, the BBC says “Facebook faces UK probe over emotion study”, SC Magazine says “ICO probes Facebook data privacy” and the Financial Times says “UK data regulator probes Facebook over psychological experiment”.

As well as prompting one to question some journalists’ obsession with probes, this also leads one to look at the basis for these stories. It appears to lie in a quote from an ICO spokesman, given I think originally to the online IT news outlet The Register

The Register asked the office of the UK’s Information Commissioner if it planned to probe Facebook following widespread criticism of its motives.

“We’re aware of this issue, and will be speaking to Facebook, as well as liaising with the Irish data protection authority, to learn more about the circumstances,” a spokesman told us.
So, the ICO is aware of the issue and will be speaking to Facebook and to the Irish Data Protection Commissioner’s office. This doesn’t quite match up to the rather hyperbolic news headlines. And there’s a good reason for this – the ICO is highly unlikely to have any power to investigate, let alone take action. Facebook, along with many other tech/social media companies, has its non-US headquarters in Ireland. This is partly for taxation reasons and partly because of access to high-skilled, relatively low cost labour. However, some companies – Facebook is one, LinkedIn another – have another reason, evidenced by the legal agreements that users enter into: because the agreement is with “Facebook Ireland”, then Ireland is deemed to be the relevant jurisdiction for data protection purposes. And, fairly or not, the Irish data protection regime is generally perceived to be relatively “friendly” towards business.
 
These jurisdictional issues are by no means clear cut – in 2013  a German data protection authority tried to exercise powers to stop Facebook imposing a “real name only” policy.
 
Furthermore, as the Court of Justice of the European Union recognised in the recent Google Spain case, the issue of territorial responsibilities and jurisdiction can be highly complex. The Court held there that, as Google had
 
[set] up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State
 
it was processing personal data in that Member State (Spain). Facebook does have a large UK corporate office with some responsibility for sales. It is just possible that this could give the ICO, as domestic data protection authority, some power to investigate. And if or when the draft European General Data Protection Regulation gets passed, fundamental shifts could take place, extending even, under Article 3(2) to bringing data controllers outside the EU within jurisdiction, where they are offering goods or services to (or monitoring) data subjects in the EU.
 
But the question here is really whether the ICO will assert any purported power to investigate, when the Irish DPC is much more clearly placed to do so (albeit it with terribly limited resources). I think it’s highly unlikely, despite all the media reports. In fact, if the ICO does investigate, and it leads to any sort of enforcement action, I will eat my hat*.
 
*I reserve the right to specify what sort of hat

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Filed under Data Protection, Directive 95/46/EC, enforcement, facebook, journalism, social media, Uncategorized