A Matter of (Joint) control? Virtual assistants and the general data protection regulation

This article provides an overview and critical examination of the rules for determining who qualifies as controller or joint controller under the General Data Protection Regulation. Using Google Assistant – an artificial intelligence-driven virtual assistant – as a case study, we argue that these rules are overreaching and difficult to apply in the present-day information society and Internet of Things environments. First, as a consequence of recent developments in case law and supervisory guidance, these rules lead to a complex and ambiguous test to determine (joint) control. Second, due to advances in technological applications and business models, it is increasingly challenging to apply such rules to contemporary processing operations. In particular, as illustrated by the Google Assistant, individuals will likely be qualified as joint controllers, together with Google and also third-party developers, for at least the collection and possible transmission of other individuals’ personal data via the virtual assistant. Third, we identify follow-on issues relating to the apportionment of responsibilities between joint controllers and the effective and complete protection of data subjects. We conclude by questioning whether the framework for determining who qualifies as controller or joint controller is future-proof and normatively desirable.