On December 22, 2021, the Austrian Supervisory Authority (“Authority”) found that an Austrian website that implemented the (free version of) Google analytics violated the GDPR’s rules on international data transfers (see here).

The Authority decided that the Standard Contractual Clauses, combined with the Austrian website operator’s supplementary measures to transfer personal data to Google LLC in the US, did not ensure an adequate level of data protection.  Accordingly, the data transfer to the US violated the GDPR.

The Authority assessed in detail each of the supplementary measures Google had put in place and concluded that these were not “effective” in providing for an adequate level of data protection.  These measures included: (1) notifying the data subjects about government access requests; (2) publication of a transparency report; (3) examining each data access request made by public authorities for compliance with applicable law; (4) applying encryption technologies; (5) applying IP anonymization functionalities, and (6) applying pseudonymization techniques.  According to the Authority, as long as Google can access the personal data (in this case, online identifiers) in plain text, these technical measures are not effective to protect the personal data at issue.

However, because of a change of ownership of the entity operating the website, the Authority did not impose a penalty on the website operator.  Instead, the Authority reasoned that, because the website is now operated by a German entity based in Bavaria, only the Bavarian Supervisory Authority could impose a penalty on the website operator.

As for Google, the Authority decided that, as the data importer, Google LLC was not responsible for compliance with the GDPR transfer rules.  The Authority decided that only the data exporter must comply with the transfer rules, and for this reason Google was not held in breach of the GDPR.

The Authority also decided that Google is a “processor” with respect to its processing of data under its Google Analytics service.  However, the Authority stated that it will conduct a “further official review” on this point and emphasized that it did not assess Google’s role in relation to any further processing of the personal data at issue.

Notably, this decision conflicts with the German Supervisory Authorities May 2020 statement that Google could not be considered a processor but, instead, should be considered a joint controller with website operators deploying Google Analytics (see here).  It once again demonstrates that the “controller” and “processor” concepts are often difficult to apply in practice.

The Authority stated that it did not (yet) assess whether Google had breached its obligations under the GDPR as a processor, but plans to do so in a separate investigation.

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The Covington team will continue to track and report on enforcement cases relating to the CJEU’s Schrems II judgement.

Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of…

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of advising clients on government affairs strategies concerning the lawmaking, to compliance advice on the adopted laws regulations and guidelines, and the representation of clients in non-contentious and contentious matters before data protection authorities.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.