Author: András Jóri

 

1. Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject.
2. The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes.
3. Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor:

(a) processes the personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

(b) ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

(c) takes all measures required pursuant to Art. 32;

(d) respects the conditions referred to in paras. 2 and 4 for engaging another processor;

(e) taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III;

(f) assists the controller in ensuring compliance with the obligations pursuant to Arts. 32 to 36 taking into account the nature of processing and the information available to the processor;

(g) at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data;

(h) makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.

Regarding point (h) of the first subparagraph, the processor shall immediately inform the controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions.

4. Where a processor engages another processor for carrying out specific processing activities on behalf of the controller, the same data protection obligations as set out in the contract or other legal act between the controller and the processor as referred to in para. 3 shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Regulation. Where that other processor fails to fulfil its data protection obligations, the initial processor shall remain fully liable to the controller for the performance of that other processor’s obligations.
5. Adherence of a processor to an approved code of conduct as referred to in Art. 40 or an approved certification mechanism as referred to in Art. 42 may be used as an element by which to demonstrate sufficient guarantees as referred to in paras. 1 and 4 of this Article.
6. Without prejudice to an individual contract between the controller and the processor, the contract or the other legal act referred to in paras. 3 and 4 of this Article may be based, in whole or in part, on standard contractual clauses referred to in paras. 7 and 8 of this Article, including when they are part of a certification granted to the controller or processor pursuant to Arts. 42 and 43.
7. The Commission may lay down standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the examination procedure referred to in Art. 93 para. 2.
8. A supervisory authority may adopt standard contractual clauses for the matters referred to in paras. 3 and 4 of this Article and in accordance with the consistency mechanism referred to in Art. 63.
9. The contract or the other legal act referred to in paras. 3 and 4 shall be in writing, including in electronic form.
10. Without prejudice to Arts. 82, 83 and 84, if a processor infringes this Regulation by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing.

 

A. Preliminary remarks

 

Distinguishing between controller and processor is a fundamental issue of data protection law: we address this topic when discussing the definition of controller and processor (→ Art. 4 no. 7 and no. 8, respectively).

Art. 28 sets out the main requirements regarding the contract or other legal instrument guiding the controller-processor relationship. By setting out the obligatory content of the contract or other instrument, the GDPR indirectly regulates the relationship in detail. In some cases, the requirement itself is set out by Art. 28 (e.g., regarding documented instructions by the controller) while in other cases a reference is made to other articles of the GDPR (e.g., in case of data security measures to Art. 32).

Requirements regarding sub-processing – i.e., engaging “another processor” by the processor – are also set out by Art. 28.

 

II. Legislative history

The DPD addressed the issues of data security and organizational measures in the context of controller-processor relationship in its Art. 17. It set out an obligation for the controller to “implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing”.

The DPD required Member States to enact Member State legislation that provided that “a controller shall choose a processor providing sufficient guarantees in respect of the technical security measures and organizational measures governing the processing to be carried out and must ensure compliance with those measures”. The DPD set out only two requirements regarding the contract or legal act governing the controller-processor relationship: that the processor shall act only on instructions from the controller; and that the obligations on appropriate technical and organizational measures shall also be “incumbent for the processor”. As to the form of the contract or legal act, the DPD required that it “shall be in writing or in another equivalent form.”

 

 

 

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