The European Data Protection Board (EDPB) has published a set of draft guidelines clarifying the key GDPR concepts of controllers and processors by providing specific examples and helpful flowcharts to help apply these concepts in practice. Buried within these guidelines is the paragraph quoted below, which has significant implications for day-to-day commercial contracts.
Under Article 28 of the GDPR, where one party (Party B) is appointed by another (Party A) to provide certain services that requires Party B to process personal data on behalf of Party A (which is the data controller), certain clauses are mandatory in the commercial contract between those parties (or in a separate data processing agreement).
Where Party A’s processing activities are minimal and are considered low-risk, it is common for the relevant agreement simply to repeat the provisions of Article 28 without further elaboration.
However, the EDPB states in the guidelines that simply restating the provisions of Article 28 without any additional detail is not sufficient. In particular, the EDPB states that the contract or separate data processing agreement required by Article 28 also needs to include information regarding the security measures to be adopted by the processor (Party B in the example above), as well as providing for a regular review of these measures.
The level of detail required is ‘such as to enable the controller to assess the appropriateness of the measures pursuant to Article 32(1) of the GDPR’. This requires both the controller (Party A) and the processor (Party B) to take into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the processing, as well as the risk of varying likelihood and severity for the rights and freedoms of those individuals whose data is processed.
The draft guidelines remain open to public consultation until 19 October 2020. Any interested parties are encouraged to contribute to the consultation by providing comments on the guidelines via the link below.
The processing agreement should not […] merely restate the provisions of the GDPR; rather, it should include more specific, concrete information as to how the requirements will be met and which level of security is required for the personal data processing that is the object of the processing agreement.