A Judgment was handed down from the European Court of Justice (ECJ) this week on the 29 July regarding who has responsibility for processing personal data when a website operator has the Facebook ‘like’ button embedded on their website.

This was a case between Fashion ID GmbH & Co. KG (Fashion ID) and Facebook Ireland.

It was held that if the website operator has the ‘Like’ button (or notably any similar social media function available on a website, such as an Instagram ‘like’ button) which passes data to a third party such as Facebook, then the website operator will be considered to be a joint controller of that data. This would apply whether or not they are able to influence the third party’s data processing.

This in effect means that the website operator’s obligations to the website user are more cumbersome.  As a joint controller they will have to determine the respective responsibilities and rights of data subjects/website users in a transparent manner.  Practically that will be done by accounting for the responsibilities in a Privacy Notice/Policy and ensuring that they have consent of the website user.

This is a new decision with consequences which could be detrimental to websites.   Asking website users to tick boxes and read policies is not a user friendly format, but this will also have negative consequences for the social media platforms who will have less people engaging in those social plugins.  Representatives for Facebook have stated they are looking into the Court’s decision and will be working closely with their partners to ensure they can benefit from the social plugins.  What is likely to be introduced to meet the requirements is a form of data controller’s agreement between the social media platform and the website operator to lay out each other’s obligations.

In practical terms the web operators who use social plugins such as the ‘Like’ buttons can and should be doing as follows:-

–      Updating their Privacy Policy/Notices to make sure they account for how this data is being sent to third parties,

–      Ensuring they have express consent to use the data accordingly before the data subject is given the ability to ‘like’ the page.

If you have any questions about any of the above or would like to undertake a review of your data compliance please do not hesitate to get in touch with our specialist team.

For further information, please contact Jo O’Donovan, a Solicitor in the Commercial & Employment department, on 01626 202347 or JoO’Donovan@wbw.co.uk. WBW Solicitors has offices in Newton Abbot, Exeter, Torquay, Paignton, Bovey Tracey, Launceston, Honiton, Exmouth and Sidmouth.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.