GDPR and Data Processing Agreements

February 2018

Any business subject to the EU General Data Protection Regulation (GDPR) as a Controller needs to have in place an appropriate contract with any other Controller it jointly shares data, particularly if that Controller is outside the EU. More importantly, any Controller that is subject to the GDPR needs to have in place an appropriate Data Processing Agreement with any third party that it shares data with where that third party is a Processor as defined under the GDPR.

GDPR applies to both Controllers and Processors that are established in the EU (e.g. have EU legal entities), but also to any Controller and Processor not located in the EU where the processing activities are related to either the offering of goods or services to data subjects in the EU (irrespective of whether a payment is required), or the monitoring of the behaviour of individuals as far as such behaviour takes place within the EU.

Many Processors are offering hosted or cloud services which are not EU located, but which clearly cause the Processor to be caught by GDPR. Controllers or Processors not established in the EU, but where they are caught by the GDPR, must, subject to some exemptions, designate in writing a representative. That representative must be established in a member state where the data subjects whose data are being processed by the Controller or Processor are located (or where most of them are located).

The appointment of a representative means that all data protection issues from data subjects or data protection authorities will be addressed to that representative, but the appointment of the representative does not affect the responsibility and liability of the Controller nor Processor under GDPR.

GDPR is quite specific about the duties of the Controller and the Processor and indeed Article 28 (3) of GDPR stipulates that there must be a contract in writing between the Controller and Processor which clearly sets out the subject matter of the processing and its duration as well as the nature and purposes of processing, the types of personal data, any particular special categories of data and the obligations and rights of both parties.

Failure to have in place a suitable Data Processing Agreement is a breach of the law under GDPR.

Articles 28 – 36 set out issues that must be addressed in the Data Protection Agreement which include that:

  • The Processor must have adequate information security in place;
  • The Processor must not use sub Processors without consent of the Controller;
  • The Processor must cooperate with the relevant Data Protection Authorities in the event of an enquiry;
  • The Processor must report data breaches to the Controller without delay;
  • The Processor may need to appoint a mandatory Data Protection Officer;
  • The Processor must keep records of all processing activities;
  • The Processor must comply with EU trans border data transfer rules ;
  • The Processor must help the Controller to comply with data subjects rights;
  • The Processor must assist the Data Controller in managing the consequences of data breaches;
  • The Processor must delete or return all personal data at the end of the contract at the choice of the Controller; and
  • The Processor must inform the Controller if the processing instructions infringe GDPR.

Controllers need to ensure that in respect of Data Processing Agreements –

  • There are documented instructions;
  • There is evidence of due diligence by the Controller over the suitability of the Processor in respect of the types of personal data being processed;
  • There are suitable confidentiality clauses in the Agreement;
  • The Processor has adequate information security in place;
  • The contract manages the downline use of sub Processors.
  • The contract puts in place measures for the Processor to help the Controller comply with Data Subject Rights;
  • There are mechanisms to assist in cooperation with the Controller and the relevant Data Protection Authorities;
  • There are processes in place to deal with data incidents and data breach notifications and
  • There are processes in place to deal with destruction or return of personal data at the end of the Agreement.

In addition to those needs  Controllers may revisit not only the mandatory terms under the GDPR, but also the issues around warranties and indemnities as well as the question of suitable insurance.

Since Controllers and Processors are equally bound to comply with GDPR, in relation to international data transfers suitable solutions should be in place in relation to personal data being transferred from the EU or more correctly the European Economic Area to other jurisdictions.

In relation to international data transfers, Privacy Shield is an approved solution to the extent that personal data is going from the EEA to the US, but where data is being transferred across many borders then other solutions such as the European Commission approved standard contractual clauses or Binding Corporate Rules may be more appropriate.

Whilst there are also a number of jurisdictions that have been deemed “approved” jurisdictions by the EU (such as Argentina, Canada and Israel), there is considerable uncertainty as to the best solution to use given that Privacy Shield is under regular review by the European Commission as to its robustness as a data transfer solution. Equally the standard contractual clauses are currently under review in the European Court of Justice and in addition the European Commission recently announced that it is reviewing all of the countries that have been deemed “adequate” in the past to ensure that their laws are still fit for purpose in terms of the adequate protection of the rights of individuals.

All of the above raises the bar in relation to the pressures on both a Controller as well as its Processor in relation to any form of data processing whether cloud or otherwise.

Controllers should have in place a number of due diligence activities in respect of the Processors that they use which can be summarised as data protection audit, documentation of data processing activities and obviously review.

Data protection audit or assessments via a Controller of a Processor might include:

  • Do they process personal data and/or special categories of data (e.g. criminal records, children’s data, health data)
  • What are the data flows;
  • What is the Processors information securities policies and procedures;
  • Has the Processor had a history of breaches (notified or not);
  • Has the Processor ever been audited or investigated by a Data Protection Authority (does the data Processor have a Data Protection Officer).

Documented data processing activities should address:

  • Data processing mapping for both intragroup and third party processing;
  • Do the Terms and Conditions of the Processor in any way claim ownership of personal data received from the Controller;
  • How are data retention and data destruction practices managed;
  • How are the use of sub processors contractually managed.

Review of policies and procedures might require the data Processor to produce:

  • Data incident response policy and procedures;
  • Data sharing policy and procedures;
  • Standard operating procedures for vetting of staff;
  • Information security practices;
  • Cyber risk assessment and compliance;
  • Evidence of training.

If Processors have not done so already, they should:

  • Carry out a GDPR Compliance Assessment;
  • Rewrite their Terms of Business as appropriate;
  • Audit their sub processors and the contractual terms with them;
  • Review their insurance cover;
  • Address data transfer solutions;
  • Assess their policies and procedures;
  • Decide if a mandatory Data Protection Officer is necessary;
  • Put in place staff training on policies and procedures; and
  • Carry out a genuine assessment as to whether or not they are actually a mere processor or in reality are a joint data controller with their customers.