Also, when the use of the services of the data processor comes to an end, the data processor company is in obligation to delete or return the processed data. Not all DPAs will look the same as they may vary by industry, and there may be a different number of parties involved.
If you rely on the GDPR while drafting the DPA for your needs, ensure that the content covered in Articles 28 through 36 is included in your agreement. Please mind that for Europe, it is legally required to have a DPA in place.
In the other countries it is strongly recommended not legally required to implement a data processing agreement, so that the parties fully understand their respective responsibilities with respect to the collection, use, and protection of personal data, and if there is ever an incident involving personal data.
Capitalized terms are usually found at the beginning of the contract and you may find terms such as:. The data subject may be given specific controls over their information. For instance, they may be able to retrieve, edit, or remove their Personal Data. You may also need to specify the location where the data can be stored due to particular restrictions related to the transfer of personal data outside the EEA.
Data processor needs to take specific technical and organizational measures to ensure security of the data provided by the data controller. The data importer processor is the party that has the obligation to provide sufficient guarantees related to organizational and technical security measures, and this clause is typically part of Appendix 2. They are obligated to provide reasonable assistance and data protection impact assessments, along with prior consultations with supervisory authorities or another data protection authority competent in the subject matter.
These clauses can include the obligations of these two entities, a third-party beneficiary clause, liability, a clause about cooperation with supervisory authorities. There may be an Appendix to the Standard Contractual Clauses, where you can find definitions of different terms used in the contract, such as data importer, data exporter, special categories of data, etc.
This agreement protects you in case of a data security breach. The General Data Protection and Regulation law from is a new data privacy law put into effect to ensure a higher level of data security in the world. Despite being drafted by the European Union, every organization and business around the world needs to ensure GDPR compliance if their work involves customer data processing of any kind.
To draft a DPA correctly, you need to know exactly what data processing refers to. Data deletion is by definition a data processing activity. Even that falls under the GDPR. Unlawful destruction of customer data may also be fined. Any data that can serve you to identify the person whose data is being processed is subject to the DPA.
Even if you handle pseudonymous information about your customers, it falls under the DPA in case you can identify a natural person behind the pseudonym.
A processor needs to sign a DPA with any subprocessors they collaborate with. If the data controller outsources specific data processing activities to a data processor, and they involve a subcontractor, everyone needs to ensure sufficient guarantees for data protection. They also have to assist the data controller in data protection impact assessment if possible.
There is. Disclaimer: This article is for informational purposes and does not constitute legal, tax, or any other advice. Always check the official Data Protection Authorities website for more information. How it works. The DPA acts as an agreement that clarifies the responsibilities, obligations, and clauses for all involved parties to act upon.
Who, When and How? Who signs a DPA? Company C then becomes a sub-processor, and both company B and C would be required to sign a DPA with your organisation. This would mean that the same data protection obligations as set out between the controller and the processor should be agreed with the sub-processor in accordance with section of Article 28 GDPR. Additionally, these points also provide room for your organisation to identify potential problems and rethink procedures to be further aligned with the GDPR.
Example of a DPA. By doing so, they are able to measure and gain insight into how subscribers engage with the emails. In this case, a DPA is required between the organisation and the service Mailchimp , which needs to include the responsibilities that explain the handling of user requests or contact forms. First steps to take in preparation of drafting a DPA Understand definitions Most DPAs would unavoidably hold plenty of legal jargon, but at the end of the day, the agreement should be clearly understandable for all parties.
In order to make sure that those without a law degree or practice in data protection also have a stable understanding of the DPA, it can be helpful to provide the glossary of the EDPB, which can be accessed easily from here. Then, have an open discussion with all parties involved. Mapping data usage and determining risk Before drafting a DPA, you should be aware of what category of personal data is involved specifically.
The GDPR categorizes personal data into the categories or regular data and special category data. Regular personal data includes information such as names and birth dates, and special category data includes sensitive information, such as financial and biometric data.
Your organisation should be very much aware of what category of personal data the DPA will be referring to, as special category data requires higher levels of data protection measures. Your data processors should also understand the sensitivity of the data they process on your behalf, and align their security measures appropriately. This means that you need a DPA, for example, when you use customer relationship management platforms CRMs , customer data platforms CDPs , analytics and many other types of tools designed to analyze user behavior.
It ensures that the chain of responsibility is clear to each participant in the process. That said, under GDPR the contract requirements are broader. They also help to demonstrate compliance of each party in case of an audit by data protection authorities. Contracts between controllers and processors ensure that they both understand their obligations, responsibilities and liabilities.
Important note! In this part of the contract you specify the terms used in the document. Among other things, you should define:. The controller should inform the data processor if they collect special categories of data, as there are more restrictions on the processing of particular data types.
If you want to learn more about the categories of personal data, read this blog post. To avoid gray areas, remember to:. That way you make sure that there are no weak links and the data processor knows exactly what you expect of them.
The provisions of this part of the contract should be adapted to the specific needs of the organization and industry-relevant requirements.
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