What should be included in a data processing agreement?

Articles 28 through 36 of GDPR set conditions of data exchange and conditions of personal data between controller and processors. Here are the most important subjects you have to cover in your data processing agreement.

Details about processing

• the subject matter and duration of the processing;
• the nature and purpose of the processing;
• the type of personal data and categories of data subject;
• purpose and legal basis of personal data processing;
• the controller’s and processor’s rights and responsibilities.

Minimum required terms

The processor must act in accordance with written instructions of the controller

The agreement must say that the processor may only process personal data in line with the controller’s documented instructions (including when making an international transfer of personal data) unless it is required to do otherwise by EU or member state law.

An instruction can be documented by using any written form, including email. The instruction must be in a reproducible form, so that there is a record of the instruction.

This contract term should make it clear that it is the controller, rather than the processor, that has overall control of what happens to the personal data.

If a processor acts outside of the controller’s instructions in such a way that it decides the purpose and means of processing, then it will be considered to be a controller in respect of that processing and will have the same liability as a controller.

Confidentiality of processed personal data

The agreement has to say that the processor must obtain a commitment of confidentiality from anyone it allows to process the personal data, unless that person is already under such a duty by statute.

This contract term should cover the processor’s employees as well as any temporary workers and third-party workers who have access to the personal data.

Obligation to have adequate information security in place, technical and organisational measures to be met

The agreement sets obligation on the processor to take all security measures necessary to meet the requirements on the security of processing  (see Article 32).

Both controllers and processors are obliged to put in place appropriate technical and organisational measures to ensure the security of any personal data they process which may include, as appropriate:

• encryption and pseudonymisation;
• the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
• the ability to restore access to personal data in the event of an incident; and
• processes for regularly testing and assessing the effectiveness of the measures.

Codes of conduct and certification may help processors to demonstrate sufficient guarantees that their processing will comply with the GDPR.

The requirement to use sub-processors only with the data controller’s knowledge and consent

The agreement must say that:

• the processor should not engage a sub-processor without the controller’s prior specific or general written authorisation;
• if a sub-processor is employed under the controller’s general written authorisation, the processor should let the controller know of any intended changes and give the controller a chance to object to them;
• if the processor employs a sub-processor, it must put a contract in place imposing the same data protection obligations on that sub-processor;
• the processor is liable to the controller for a sub-processor’s compliance with its data protection obligations.

Cooperation of processor for the purpose of resolving subject access requests

The agreement has to provide for the processor to take appropriate technical and organisational measures to help the controller respond to requests from individuals to exercise their rights.

Cooperation of processor for the purpose of protecting the rights and privacy of data subjects

The agreement has to say that, taking into account the nature of the processing and the information available, the processor must assist the controller in meeting its obligations to:

• keep personal data secure;
• notify personal data breaches to the supervisory authority;
• notify personal data breaches to data subjects;
• carry out data protection impact assessments (DPIAs) when required; and
• consult the supervisory authority where a DPIA indicates there is a high risk that cannot be mitigated.

The agreement should be as clear as possible about how the processor will help the controller meet its obligations.

Duration of the processing and returning and/or deletion of personal data

The agreement has to say that at the end of the contract the processor must:

• at the controller’s choice, delete or return to the controller all the personal data it has been processing for it; and
• delete existing copies of the personal data unless EU or Member State law requires it to be stored.

It should be noted that deletion of personal data should be done in a secure manner, in accordance with the security requirements of Article 32. 

The agreement has to include these terms to ensure the continuing protection of the personal data after the contract ends. This reflects the fact that it is ultimately for the controller to decide what should happen to the personal data being processed, once processing is complete.

The processor should allow the data controller to carry out audits examining their compliance

Under Article 28(3)(h) the agreement has to require:

• the processor to provide the controller with all the information that is needed to show that the obligations of Article 28 have been met; and
• the processor to allow for, and contribute to, audits and inspections carried out by the controller, or by an auditor appointed by the controller.

This provision obliges the processor to be able to demonstrate compliance with the whole of Article 28 to the controller. For instance, the processor could do this by giving the controller the necessary information or by submitting to an audit or inspection.

Keeping records of the processing activities would be useful for the processor to demonstrate compliance with Article 28. Requirements for processors to maintain records of their processing activities are set out in Article 30(2). 

Other requirements

If required by GDPR, the data processor shall appoint a Data Protection Officer and both parties must agree on periodic review of terms of the agreement.