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.