10/2018

Safety under Facebook’s Page Insights Controller Addendum (“PICA”)?

Published 12 September 2018 as an extension of the general terms and conditions[1], Facebook proposed an agreement assuming all main responsibility for compliance with data protection law. Furthermore, Facebook considers itself liable for fulfilling information obligations, rights of the persons affected, data security and notice of data protection breaches. Obligations remaining with page administrators include establishing an appropriate legal basis for the use of Insight data and to notify every request by visitors or data protection authorities to Facebook. [2] Assuming the legal consequences of this agreement, administrators are mostly safe when promoting their business on their Facebook page. However, the establishment of a Facebook privacy statement remains indispensable, referring to the PICA as well as the use of Facebook Insights.

[1] https://www.facebook.com/legal/terms/page_controller_addendum [11.10.2018]

[2] Jan Lennard Müller, Facebook reagiert auf EuGH Artikel, 20.09.2018,
available at: https://www.it-recht-kanzlei.de/eugh-facebook-page-insights-controller-addendum.html [11.10.2018]

A new outlook for Facebook Insights?

Promoting business in today’s social media driven economy demands that companies have a presence on platforms such as Twitter, LinkedIn or Facebook. Thus, communicating via business accounts implies processing customers’ data. Under new GDPR provisions, who is liable for the use of an audience’s information?  The social media platform or the administrator of the account? The Court of Justice of the European Union (“CJEU”) replied to this question on 5 June 2018[1], by holding administrators of a Facebook fan page jointly responsible with Facebook. Facebook reacted to the decision with a “Page Insights Controller Addendum”[2] – however, is operating a fan page for businesses really safe?

Inside Facebook’s processed data

Companies (or private persons) that set up a special user account for their business on Facebook create a Facebook page, commonly known as “Fan page”, where they can introduce their business and post information.[3] Setting up this page implies becoming administrator of said page and use of a range of tools for analysing and configuring collected data.  In particular by using a tool called “Facebook Insights”, administrators collect anonymous statistical data about visitors to their page.[4] This data is acquired through the information Facebook collects via evidence files (“cookies”), which contain a unique ID number that is stored on the hard disk of the user’s computer.[5] The use of these insights enables administrators to ask for demographic data, as well as information on the lifestyles and interests of the target audience; and to consequently take part in the processing of the audience’s data.[6]

Processing data and liability under the General Data Protection Regulation (“GDPR”)

GDPR aims to protect the processing of personal data and to determine therefore the entities that can be held liable. A key role in this context are entities that can be identified as the ‘controller’, a body which, “alone or jointly with others, determines the purposes and means of the processing of personal data”[7]. Controllers are the entities held responsible when data processing infringements are committed, hence being identified as such is a sensitive issue. Their identification depends moreover not only on their capability to determine the purposes of the processed personal data, but also on their supervising authority when data is processed across borders.  Cross-border processing of data was also one of the emerging issues in the Case brought before the CJEU on 5 June 2018[8]: In fact, Facebook designated its subsidiary, Facebook Ireland, internally as “the party responsible for all data processing activities within the territory of the EU”[9]. The question that was brought before the Court questioned this decision by arguing that another subsidiary, Facebook Germany, should be held liable for infringements within German territory and under German law.[10]

Key issues and the Court’s response

As far as application of national law is concerned, the Court found that German national law is applicable, as the controller has a presence in that Member State. The Court nonetheless also confirmed Facebook’s decision to designate Facebook Ireland as the competent party in stating, in the line of the GDPR[11], that the supervisory authority from one Member State, as long as it acts as ‘main establishment’, exercises the role of controller in cases of cross-border data processing.

The core question in this case was about whether page administrators, although external to Facebook as social network operators, can be considered as controllers and therefore held responsible for processing data in connection with their page. In its decision the CJEU found page administrators help determine the purpose of the visitor’s personal processed data, mostly by defining the page’s parameters.[12]  Furthermore,  the Court stated 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.”[13] For these reasons, the CJEU concluded that administrators must also be considered controllers, though jointly with Facebook.[14]

Although the Court’s intention was to relativise this burden of responsibility for millions of page administrators, in stating that “joint controllers” does not signify equal responsibility[15] (“operators may be involved at different stages of the processing of personal data and to different degrees, so that the level of responsibility of each of them must be assessed with regard to all the relevant circumstances of a particular case”[16]), as ramifications on business would be considerable.  Indeed, were the CJEU’s decision taken literally, should companies delete their pages to be sure not to transgress data protection provisions? Certainly not, especially after Facebook reacted to the judgement by proposing an agreement about primary responsibility regarding fulfilling data protection obligations; the “Page Insights Controller Addendum”.

 Author Line:

Mag. Michael Hirth, Attorney at law, Certified Data Protection Officer and specialized in data protection law. Contact: hirth@lhra.at

 Photo:

[1] Case C-210/16, Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v Wirtschaftsakademie Schleswig-Holstein GmbH [2018]

[2] https://www.facebook.com/legal/terms/page_controller_addendum [11th October 2018]

[3] Nicolas Blanc, Wirtschaftsakademie Schleswig-Holstein: Towards a Joint Responsibility of Facebook Fan Page Administrators for Infringements to European Data Protection Law?, 4 Eur. Data Prot. L. Rev, 2018, p.120

[4]Court of Justice of the European Union, The administrator of a fan page on Facebook is jointly responsible with Facebook for the processing of data of visitors to the page [Press release No 81/18] Luxembourg, 5^th June 2018
available online: https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-06/cp180081en.pdf [11.10.2018]

[5] Nicolas Blanc, ibid. p. 120

[6] Court of Justice of the European Union, ibid.

[7] Art. 4 GDPR

[8] Case C-210/16, ibid.

[9] Nicolas Blanc, ibid. p. 121

[10] Nicolas Blanc, ibid. p. 121

[11] GDPR art. 55 and 56

[12] Court of Justice of the European Union, ibid.

[13] Case C-210/16, ibid.

[14] Court of Justice of the European Union, ibid.

[15] XPAN Law Group, Are You a Joint Controller with Facebook? The CJEU’s Judgment in Case C-210/16, 2018
available on: https://xpanlawgroup.com/are-you-a-joint-controller-with-facebook-the-cjeus-judgment-in-case-c-210-16/ [11.10.2018]

[16] Case C-210/16, ibid.

Article Download (PDF): New outlooks for Facebook Insights

Following the joint event on 13.02.2018, CONSIGA & Partner Consulting GmbH, Markus Leitner, has launched several projects relating to SME consultancy, which mutually enrich the consulting spectrum and the possibility of more comprehensive advice, especially in the areas of Industry 4.0 and digitization. In addition to topics in the field of compliance and digitization, structural and expansion issues are defining in the combination of consulting.

On 16.04.2018 Markus Leitner H.E. LE Dung Ambassador of the Socialist Republic of Vietnam to Austria and Slovenia since January 2018, with Mr. LE Minh Duc, Trade Delegate, Embassy of the Socialist Republic of Vietnam, visited Magna, in the framework of which is a current project between Magna and VinFast, in the field of production of vehicles in Vietnam. Within the framework of this concrete project further cooperation of companies from Graz in the ASEAN region can be expected.

On 16.04.2018 Markus Leitner H.E. LE Dung Ambassador of the Socialist Republic of Vietnam in Austria and Slovenia since January 2018, with Mr. LE Minh Duc, Trade Delegate, Embassy of the Socialist Republic of Vietnam, a visit to representatives of the city of Graz, in the context of which many options of cooperation between the city of Graz and Vietnam , were evaluated in the areas of tourism and business development, student exchange and economic cooperation. An implementation of some topics is timely considered in this context.

“What must medium-sized companies, clubs and social institutions pay attention to and have implemented by 25 May 2018?” Is still the central question after the event in the Berlin Captial Club on 09.03.2018.

The EU General Data Protection Regulation (GDPR), which will be binding for all companies from 25 May 2018, has a massive impact on virtually every company. There are important changes to these that require early, intensive and comprehensive engagement with the details of the highly complex new legal situation. Well-tried business models need to be reconsidered, all data processing checked and new administrative obligations implemented.

This not only applies to “data-driven” business models, but to companies of all types and sizes.

The Berlin Business Talks e.v. Together with the Knittel Academy for Data Protection & Compliance we are offering a one-day seminar during which Markus Leitner will provide practical information on the upcoming changes and potential pitfalls in the areas of compliance and information security.

Now, based on the discussions in the event, a web-based tool for training management and employees has been created in a cooperation between Markus Leitner and Michael Brandstätter, which can be adapted to companies, and makes it possible for employees and employees, even in dislocated workplaces To train the management in the required compliance, and to provide proof of the knowledge. The demand for this model is already great.

On March 28, 2018, Markus Leitner, together with CONSIGA & Partner consulting GmbH, gave a lecture by colleagues Dr. Oliver Völkel LL.M. on the topic: Blockchain and cryptocurrencies in the structure of the legal system, in the AULA x space, Georgigasse 85a, A – 8020 Graz, invited.

“With the spread of virtual currencies such as Bitcoin, the law has to ask the question of how to deal with this new phenomenon under private law. The entrepreneurial practice is currently apparently still unsettled or lives on the principle Ubi non accusator, ibi non iudex. “(Quote Dr. Oliver Völkel LL.M., ÖBA 6/17, S 385)

The ensuing discussion at the AULA x space, with an invited audience, clarified many of the open questions, and provided starting points for the treatment of derivative acquisition through legal transactions, as well as the use of virtual currencies as collateral for real estate purchases

On 05.03.2018 Markus Leitner meets Fahri Toga, founder of the international lawyer network PraeLegal in Istanbul. In addition to ongoing projects, together with Ali Rayegani, representatives of PraeLegal Iran, further prospects for closer cooperation in infrastructure and development projects will be discussed. On the personal level between Fahri Toga and Markus Leitner, with the now defined cooperation, clients can be offered an interesting and sustainable contact for the execution of projects in all sectors, in Turkey. On the basis of projects that have already been completed with network partners, this combination is an interesting addition to the covered markets.

SAVE THE DATE

Warum Baron Münchhausen als KMU erfolgreich gewesen wäre!

oder:

Wie kann der Mittelstand Potenziale in Zeiten des allgemeinen
Wirtschaftswachstums realisieren

Es freut uns, Sie zu dieser Reise durch den Themenquerschnitt im Mittelstand  einladen zu dürfen.

Wann:   13. Februar 2018

Uhrzeit:   16:00 – 17:30, danach „networking“ bei Brötchen und Getränken

Wo:  Büro Leitner & Hirth, Grieskai 16, 8020 Graz

u.A.w.g. unter +43 (0) 316 710111 oder office@lhra.at   

Agenda

• Erfahrungen/Bestandsaufnahme im Mittelstand – oder was Sie schon immer über Ihr eigenes Unternehmen wissen wollten…
• Ertrags- und Liquiditätsoptimierung: Gesellschafterwünsche vs. wirtschaftliche Notwendigkeit?
• Vertrieb – Architektur neuer Vertriebswege
• Strategie – Unwort der letzten Jahre und Overkill für KMU’s – oder doch eine gemeinsamen Basis für alle Stakeholder?
• Finanzierung & Sicherheiten für Banken: Ein Spannungsverhältnis mit Lösung?
• Unternehmensfinanzierung: 1 + 1 = 3…
• Organisationsentwicklung: Warum ist der “grüne-Wiese-Ansatz” manchmal so befreiend!

In Kooperation mit:

08.02.2018 – Trend-Tourism Export

Markus Leitner drives, supported by Daniel Zawarczynski (left; http://www.advantageaustria.org/th/oesterreich-in-thailand/Office-Bangkok.team.en.html), and Norbert Witthinrich, real-estate expert for luxury objects and hotel projects, as representative of the future Thai owner of the luxury bio resort (middle, http://coldwellbankerphuket.com/), the „7 Wunder Hotel Cube“, invented by Markus Ulrich (right), towards Thailand. In a first step, the luxury and residue-free integrable „Cubes“, will be implemented in a luxury resort in Phuket. 32 “Cubes” will grace the shore of an island to the environmentally sustainable pleasure of future tourists. Know How from Austria, „surprisingly ingenious“ meets environmentally aware tourism in Thailand.

07.02.2018 – Markus Leitner combines European know how with the Symbol of Excellence awarded Norbert Witthinrich (http://coldwellbankerphuket.com/), in a project in the south of Thailand. Besides common knowledge on realestate, Witthinrich and Leitner focus on the details on high end luxury hotel projects in niche markets.

Norbert Witthinrich known for his integrity, energy, hard work and bespoke customer service, grew up in Germany and started his career in IT before realizing that connecting with others was more important to him than fixing system performances.

This led him to start his own property business 40 years ago and later, to pursue this same activity in Phuket, Thailand. With 20 years of experience as a realtor on the island, Norbert Witthinrich has worked every aspect of the industry representing sellers, buyers and investors from around the globe in both the residential and commercial market. A Coldwell Banker agent since 2017, Norbert Witthinrich has recently been awarded the 2018 Best Luxury Real Estate Agency Award for Phuket by Luxury Lifestyle Awards for his ability to deliver results, his strong ethics, professional customer centric team and exceptionally loyal clientele, makes him the best completion for Markus Leitner.

Once more, Rotary D-A-CH Bangkok has been center of the development of the interesting cooperation.

With Patrick Knittel, Director of the Knittel Academy for data protection & Compliance (https://knittel-compliance.de) Markus Leitner has successfully onboarded the perfect partner for a one stop shop solution around the topics of data protection and compliance, as well as corporate social responsibility.

With Patrick Knittel a competent consultancy and training for companies, unions and societies within the topic of compliance can be provided on both, national and international level. Furthermore a special service for SMEs is set up, to provide external data protection officer as well as external compliance officer.

The know-how in compliance is expanded by the close cooperation with a team of experienced external experts in the fields of IT-security officers and IT-provider.

On 6th of December 2017 Markus Leitner and Tuan Nguyen, both partner in Corporate Matching Program, a network that supports clients beyond normal legal networks, have been invited by Rotary D-A-CH Bangkok, to present Corporate Matching Program.

On 5th and 6th of December Business Network Go International will have the kick off Meeting in Bangkok. Markus Leitner rallies the Corporate Matching Partner from India, Iran, Vietnam, Thailand and Argentina in Bangkok, to enlargen the scope of service of BNGI, Business Network Go International. Besides the legal, tax and consulting services, that have been provided for clients in the past, the network partner will provide infrastructure for the clients for a first step into the respective Market. The partner are working together in the Corporate Matching for years, and have interlinked SMEs in various sectors. Now the professional service will be enriched by a further component.

On 23^rd of November 2017, Markus Leitner introduces Stefan Strein and Gerhard Zehetner of doro Turbinen GmbH, with the revolutionary idea of the doro turbine, for more efficiency in small hydros to Mag. Marco Garcia, Trade Counselor of the Embassy of Austria Business section. With Andres Willa, managing Partner of ESTUDIO WILLA ABOGADOS & CONSULTATORES TRIBUTARIOS (http://www.estudiowilla.com), Markus Leitner has found potential joint venture partners in Argentina, to take this cutting edge technology to the market in south America. Andres Willa and Markus Leitner, within their Corporate Matching Program, have opened up a more than interesting market for doro.

On 23rd of November Markus Leitner has taken another step in enlarging the Corporate Matching Program range of partner, by implementing ESTUDIO WILLA ABOGADOS & CONSULTATORES TRIBUTARIOS (http://www.estudiowilla.com), represented by Managing Partner and founder Andrés Willa into the network. Besides legal advice in Argentina, this exclusive cooperation is a one stop shop solution for SMEs entering the market of Argentina and south Amerika. The cooperation, reflected in the friendship between Markus Leitner and Andrés Willa, offers, in the sense of a one-stop-shop solution, a fully operational consulting in the region and offers office infrastructure in Buenos Aires for the clients of the cooperation.  This is a business enabling factor that offers chances beyond the classic international legal networks, real opportunities for SMEs in new markets.

On 07th of November 2017, Stefan Strein as CEO of doro turbinen GmbH held his presentation, regarding the small hydro project “Sulm” in front of the technical committee for energy and environment, together with Markus Leitner. The technical committee was strongly interested in the further steps of implementation of the small hydro power plant. Doro Turbinen GmbH, supported by Markus Leitner, is ambitious to get the project realized in the connex of “Stadtentwicklungskonzept Leibnitz 2010”, to contribute energy independence. With the project, that is supported by supervisory of the government, besides the company of Hannes Harkamp and the open-air swimming pool, 500 households could be supplied with green energy.

On 28th of October Markus Leitner has taken another step in enlarging the Corporate Matching Program, by implementing PraeLegal Iran (www.farjamlaw.com), represented by Yahya Rayegani, Managing Partner of PraeLegal Iran, into the network. Besides legal advice in Iran, this cooperation is a one stop shop solution for SMEs entering the market in Iran. After an audit process, SMEs entering the market in Iran are provided a full consultancy service by PraeLegal Iran, as well as supported by office infrastructure in Teheran, for a swift entering into the growing market of Iran.

On October 11th Markus Leitner had a meeting with Mag.phil. Thomas SCHULLER-GÖTZBURG, Ambassador at the Embassy of Austria in Hanoi, to discuss the possibilities of market entry of Austrian SMEs in Vietnam. Within pending projects the support of the Embassy was assured, to promote the most valued export good of Austria “technology”, in Vietnam.

On 10th of Oktober Markus Leitner has taken another step in enlarging the Corporate Matching Program, by implementing ANT Lawyers (www.antlawyers.vn), represented by Managing Partner Tuan Nguyen into the network. Besides legal advice in Vietnam, this cooperation is a one stop shop solution for SMEs entering the market of Vietnam. After an audit process, SMEs entering the market in Vietnam are provided a full consultancy service by ANT Lawyers and consultants as well as supported by office infrastructure in Hanoi for a swift entering into the growing market of Vietnam.

On 10th of September Stefan Strein form doro Turbine GmbH (http://doro-turbine.com), presented Yahya Rayegani, Managing Partner of PraeLegal Iran (www.farjamlaw.com), his technology in the framework of Corporate Matching, operated by Markus Leitner, for Iran and Afghanistan. Tangible inquiries for a technology transfer have been received already.

On 10th of September Markus Leitner has taken another step in enlarging the Corporate Matching Program, by implementing PraeLegal Iran (www.farjamlaw.com), represented by Yahya Rayegani, Managing Partner of PraeLegal Iran, into the network. Besides legal advice in Iran, this cooperation is a one stop shop solution for SMEs entering the market in Iran. After an audit process, SMEs entering the market in Iran are provided a full consultancy service by PraeLegal Iran, as well as supported by office infrastructure in Teheran, for a swift entering into the growing market of Iran.

On August 14th 2017, the first Compliance Training for SMEs was held under the guidance of Markus Leitner of B4Y. Patrick Knittel from Knittel Akademie for Data Protection & Compliance was giving a first-hand training from years of experience to selected representatives of various companies. Since compliance and the necessity of conducting training for management and employees is evident, more events will be hosted by B4Y.

On 8th of August 2017 Stefan Strein of doro Turbinen GmbH as well as Gerhard Zehetner and Ing. Klaus Jammernegg from Mach & Partner ZT-GmbH, presented, after project set up by Markus Leitner, with visual Support of the team of MESHED, the Small Hydro Project Leibnitz to officials in Leibnitz. Alongside the solution of problems with existing fish ladders to meet the requirements of EU Water Framework Directive, the project could greatly contribute to the plans of Leibnitz being energy self-sufficient by 2030. Hannes Harkamp is one of the leading supporter of the project, bringing green energy into the region.

The Austrian pioneering company TWF Baumaschinentechnik GmbH presented, after market entry work from Markus Leitner, their leading Trench Shoring System technology to more than 40 decision makers, experts and company representatives on Wednesday 14th June at the Grand Four Wings Convention Hotel in Bangkok.In a “TWF Trench Shoring Systems” Live Showcase, organized in cooperation with the Austrian Embassy – Commercial Section Bangkok, with the objective of presenting the Austrian expertise in foundation construction to Thailand, the participants had a perfect view on the safety equipment. The showcase attracted great interest from local private and public civil construction experts, such as construction companies, consulting firms and government authorities.  

On 24th of April 2017, Markus Leitner introduces Stefan Strein and Gerhard Zehetner of doro Turbinen GmbH, with the revolutionary idea of the doro turbine, for more efficiency in small hydros to Dr. Oskar Andesner, Trade Counselor of the Embassy of Austria Business section. With Gautam Khurana, managing partner of ILO (India Law Offices), Markus Leitner has found potential joint venture partners in India, to take this cutting edge technology to the indian market. Gautam Khurana and Markus Leitner, within their Corporate Matching Program, have opened up a more than interesting market for doro.

With the Trade Counselor of the Embassy of the Socialist Republic of Vietnam in Vienna, Mr. Le Minh Duc, on the 16^th of March 2017, Markus Leitner discussed various pending projects in the export and technology transfer sector. The projects are within hydro power, aviation and agriculture, right in the focus of neighboring country of  China, Laos, Cambodia, the Gulf of Thailand and the south Chinese sea.

As part of the Conference of the Confederation of Indian Industry and ILO on the 15^th of February 2017, Markus Leitner and Gautam Khurana had the opportunity to present the Corporate Matching Program, designed for market development of foreign SMEs in India. Alongside with Ms. Savithri Parekh,Chief Legal & Secretarial at PidiliteInds Ltd, und Mr. Madhav B Shriram,Chairman – Delhi State, Confederation of Indian Industry, as well as Deputy Managing Director, DCM Shriram Industries Limited, a panel discussion was held upon chances and challenges of the market in India for foreign SMEs.