Suppliers – why your contracts and security are important
Processors and controllers are both accountable
Do you provide a service to clients and handle your client’s personal data? If you’re acting as a processor, a recent GDPR fine serves as a helpful reminder to be sure to have all your ducks in a row.
There’s a clear warning you shouldn’t just assume the contracts your clients ask you to sign are okay, nor can you just say you have robust security measures in place, you actually have to have them!
In this recent case a software publisher, acting as a processor for their clients, was fined 1.5 million Euros by the French regulator (CNIL) following a data breach involving sensitive health data.
It was found data was exfiltrated by unauthorised parties from a poorly protected server. In a nutshell the key findings were:
- Significant gaps in the processor’s security processes
- Contractual documentation which failed to include mandatory obligations required under Article 28 of GDPR.
It’s worth noting the fine was based on both these counts. The ruling makes it clear processors should be wary of relying on their clients to make sure contractual terms are up to scratch. It’s the responsibility of both parties.
Here’s a quick recap on the how suppliers can minimise their risks.
Getting the relationship clear
The most important first step is to establish the relationship between your company and another.
- Are you handling a client’s data on their behalf, under their instruction, to provide a service to them?
- Are you acting as controller, clearly determining how the personal data will be used for your own purpose(s)?
- Are you both? i.e. acting as a controller in certain circumstances, but a processor for specific services you provide to clients.
What are the contractual requirements?
Once you’re clear you are a processor, acting under your client’s instructions, the law states your arrangements with clients must be covered by a binding agreement. EU and UK GDPR set out specific provisions which must be written into such contracts. In brief these are as follows:
1. Types of personal data & categories of data subject
The contract needs to specify what types of personal data you’ll be handling. It should also include details of whether this data relates to your client’s employees, patients, customers, and so forth.
2. Nature, purpose, duration of processing
The contract should describe the nature of the service(s) you provide, what purpose(s) this serves and the term of the contract. The agreement should cover instructions from your client of what you are permitted to do with their data.
3. The rights and duties of each party
The obligations of both parties should be clearly defined. For example, the client’s obligation to have a lawful basis for processing, its responsibility to fulfil individual privacy rights and your commitment as a supplier to not use your client’s data for any other purpose.
4. Technical and organisational measures
As a supplier you need to provide sufficient guarantees to implement proportionate technical and organisational measures to meet requirements of UK/EU GDPR.
If you engage other companies (‘sub processors’) to support you in delivering your services, you’ll need specific or general written authorisation from your client(s). If you make any changes to which sub-processors you use (including software providers), you’ll need to tell your client and give them the opportunity to object. Contractual terms should stipulate that you are accountable for your sub-processors.
6. International transfers
If relevant, the agreement should include details and provisions for any transfers of personal data to a third country. For example if you are based in the UK, a transfer to any other country. This would include details of any sub-processors based outside the UK. A transfer is often associated with the act of sending or transmitting personal data from one country to another. It should be noted the definition also covers cases where personal data is made ‘available’, in other words can be accessed in a third country.
7. Duty of confidentiality
There must be a confidentiality clause, which commits you to ensuring any of your staff authorised to access the client’s data are committed to a duty of confidentiality or are under a statutory obligation of confidentiality.
8. Assisting your clients
The contract should cover your commitment to assisting your clients, where necessary, with handling individual privacy rights, handling data breaches and conducting data protection impact assessments.
9. Return or destruction of data
It should be clear what happens to the client’s data when the contract ends. Does the client want you to return the data or destroy it?
10. Audits and inspections
As a processor you must agree to make available all information necessary to demonstrate your compliance and agree to audits, including inspections by your client or their authorised auditor.
Processors have obligations
This recent CNIL fine shows you can’t just sign a contract, sit back and relax.
As a processor you’re responsible for your sub-processors, data transfers, staff training and confidentiality, assisting your clients when necessary and so forth. You have to be sure to implement the technical and organisation measures you said you would to protect your client’s data.
While some clients will ask you to jump through multiple hoops as part of their due diligence process, making you clearly demonstrate your security measures are robust, others may not be so picky. But that doesn’t release you from your responsibilities.
The law and this recent fine make it clear processors can be held liable. In the event of a breach, your contractual arrangements and internal practices could come under rigorous scrutiny.