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  • Print publication year: 2019
  • Online publication date: June 2019

Chapter 2 - Typology of Issues

from PART V - RECOMMENDATIONS

Summary

INTRODUCTION

1174. PREFACE – Part IV of this book demonstrated that applying the concepts of controller and processor can be difficult in practice. Practitioners often disagree as to whether an entity should be considered a controller or processor, or struggle to make an unambiguous determination. The objective of this Chapter is to provide a structured overview of the main issues that emerge in practice. To this end, a typology of issues shall be developed which categorizes the issues identified in Part IV and presents them in a structured manner.

1175. CATEGORISATION – The typology of issues shall be structured according to four traditional methods of legal interpretation, namely: (1) grammatical; (2) teleological; (3) systemic; and (4) historical. The chosen methods were retained simply because they are the methods of legal interpretation that have been relied upon – either explicitly or implicitly – by scholars, regulators and courts when evaluating the use cases documented in Part IV. Applying this categorisation, the following typology of issues can be developed:

  • Grammatical issues: issues that concern the words chosen to define the concepts of controller and processor;
  • Teleological issues: issues that concern the policy objectives that underlie the allocation of responsibility and liability between controllers and processors;
  • Systemic issues: issues that arise in light of the functions fulfilled by the controller and processor concepts within the regulatory scheme of EU data protection law; and
  • Historical issues: issues that arise when applying the regulatory framework of EU data protection law to situations which were not envisaged by the European legislature.
  • 1176. JUSTIFICATION – The development of a typology of issues according to traditional methods of legal interpretation is motivated by the assumption that conflicts of interpretation, as well as interpretative guidelines provided by courts and regulators, can help to uncover the main issues at stake.

    1177. LIMITATIONS – The utility of the exercise undertaken over the following sections is predicated on the assumption that the selection of use cases analysed in Part IV offers a sufficiently representative account of the main issues that arise when applying the controller and processor concepts in practice. In other words, there can be no pretence at being exhaustive. Be that as it may, the analysis of proposals put forward by different stakeholders suggests that the typology of issues presented here is rather comprehensive.