GDPR Basics: Data processing agreements (DPAs)
Key Topics
The Client
The Problem
The Solution
Data processing agreements (DPAs) are legally binding contracts that outline the responsibilities of a data processor and a data controller in relation to the processing of personal data. They are an important tool for ensuring compliance with the General Data Protection Regulation (GDPR), which is a set of EU laws that regulate the collection, use, and storage of personal data.
Under the GDPR, personal data refers to any information that can be used to identify an individual, such as name, address, email address, or IP address. The GDPR applies to any organization that processes the personal data of individuals in the EU, regardless of whether the organization is based within the EU or not.
A DPA is a necessary component of any relationship between a data controller and a data processor. The data controller is the party that determines the purposes and means of processing personal data, while the data processor is the party that processes the data on behalf of the controller.
DPAs establish the terms and conditions under which the data processor will process the personal data of the data controller's customers or clients. They outline the specific purposes for which the personal data will be used, the security measures that must be in place to protect the data, and the rights of the individuals whose data is being processed.
One of the key requirements of the GDPR is that data controllers must ensure that their data processors provide "sufficient guarantees" that they will process the personal data in accordance with the GDPR. This includes implementing appropriate technical and organizational measures to protect the data, and ensuring that the data is only used for the specific purposes outlined in the DPA.
In addition to outlining the responsibilities of the data controller and data processor, DPAs also establish the rights of individuals whose data is being processed. These rights include the right to access their personal data, the right to have their data erased, and the right to object to the processing of their data.
DPAs are an important tool for ensuring compliance with the GDPR and protecting the personal data of individuals. If you are a data controller or data processor, it is important to ensure that you have a DPA in place that clearly outlines the responsibilities of both parties and protects the rights of the individuals whose data is being processed.
There are several important elements that should be included in a data processing agreement (DPA). These include:
- Parties: The DPA should clearly identify the data controller and the data processor, as well as any sub-processors who will be involved in the processing of personal data.
- Purpose: The DPA should outline the specific purposes for which the personal data will be used, as well as any additional purposes that may be added later.
- Duration: The DPA should specify the duration of the agreement and any provisions for renewal or termination.
- Data protection: The DPA should outline the technical and organizational measures that the data processor will put in place to protect the personal data, as well as any additional measures that may be required by the data controller.
- Sub-processing: If the data processor will be using sub-processors to assist with the processing of personal data, the DPA should outline the requirements for the selection and use of sub-processors.
- International transfers: If the personal data will be transferred outside of the EU, the DPA should specify the measures that will be taken to ensure that the data is protected in accordance with the GDPR.
- Auditing: The DPA should outline the rights of the data controller to audit the data processor's compliance with the DPA, as well as any requirements for the data processor to provide reports or other documentation.
- Liability: The DPA should specify the liability of the data controller and data processor in the event of a breach of the agreement, as well as any provisions for indemnification.
- Termination: The DPA should outline the circumstances under which the agreement can be terminated and the process for returning or destroying personal data.
- Governing law: The DPA should specify the jurisdiction under which the agreement will be governed and any applicable laws or regulations.
