EDPB Report: Challenges faced by DPOs in Europe

March 4, 2024

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April 1, 2024

What is a DPA and why do you need one?

March 18, 2024

Why do you need a DPA?

Legal compliance is the primary reason for a Data Processing Agreement (DPA).

A DPA is mandatory in the UK and all EU countries, although not in all jurisdictions around the world. A DPA is a necessary requirement between controllers and processors operating under the General Data Protection RegulationRegulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). (GDPR) in accordance with Article 28.

Therefore, if your organisation is considered a data controller or a data processor and you processA series of actions or steps taken in order to achieve a particular end. the data of EU or UK-based individuals, you must have a DPA in place.
Read about controllers, processors and GDPR compliance here

Risk minimisation is a key benefit of a DPA.

Organisations can minimise the impact of data breaches or unauthorised access by having clear definitions of controller and processor roles, including responsibilities and obligations, data processing procedures, security measures and data subject rightsUnder UK and EU data protection regulation, data subjects have a number of rights available to them, including the right to be informed, access, rectification, erasure, restrict processing, data portability, to object and further rights in relation to automated decision making and profiling.. A DPA is an essential component of a robust framework for responsible data handling.
Additional information about data breach management

Individual rights protection is the fundamental basis for data protection laws. A DPA demonstrates how your organisation protects the rights of individuals through clearly defined processes and accountabilities.

StakeholderAn individual with an interest or concern in something (i.e. a Social Worker, Healthcare Professional, Headteacher etc. in respect of the welfare of a child). trust building is an important aspect of data protection. Transparency fosters trust, and a DPA ensures transparency by detailing security measures and data processing protocols.

Collaboration enhancement is an additional advantage of having a comprehensive and well-thought-out DPA. When both parties understand their respective obligations, a collaborative environment develops, which strengthens efficient data processing.

Long-term business relationships work best when there is trust and the roles of each party are transparent and clearly defined. A DPA can help support your long-term business relationships.

Common misconceptions about DPAs

Key elements of a DPA

DPAs can vary in content, depending on the specific context and requirements of each data processing arrangement. However, there are certain details you must include in every agreement.

Here is a helpful overview of the essential content to include in your DPA:

ESSENTIAL DPA CONTENT	DESCRIPTION
Must be a contract or other legal act that is binding	DPA must be in writing and executed by both parties as a standalone agreement or incorporated as part of another agreement or contract
Subject matter and duration of processing	Outline what you are trying to achieve with the personal data Outline the duration of the agreement with start and end dates Define conditions that would trigger termination (e.g. data processing cessation)
Nature and purpose of data processing	Explain the context (e.g. marketing analysis, payroll) Be precise about the intended outcomes (e.g. improving services, legal obligations)
Categories of data subjects	Specify the people whose data you are processing (e.g. employees, customers, job applicants)
Types of personal data	Specify the data type (e.g. names, addresses, financial details) Consider sensitive data (e.g. health information, racial or ethnic origin)
Obligations & responsibilities	Detail the specific obligations and responsibilities of both the controller and the processor, including: Process personal data only on instruction of the data controller Ensure persons with access are subject to confidentiality Makes available to the controller all information necessary to demonstrate compliance with obligations laid down in this article Allow for audits or inspections to be carried out by the controller or its authorised representative Inform the controller if, in its opinion, any instructions infringe or breach any data protection or other State Member data protection provisions Assist the controller in fulfilling the controller’s obligation to respond to requests to exercise a data subject’s rights
Technical and organisational measures	Assist the controller in compliance with the obligations set out in Article 32 to 36, taking into account the nature of processing and the information available to the processor Provide the controller with assistance to conduct a Data Protection Impact AssessmentA formal documented assessment which allows decision-makers to identify, manage and mitigate any data protection risks associated with a project. (DPIA), if needed Specify who has access to the data and under what conditions Outline the procedures for reporting breaches promptly, including the time for reporting to the controller, allowing them to respond within the statutory 72-hour time limit Describe the additional security measures in place (e.g. encryption), ideally using an appendix or annex to the processing agreement
International data transfers	Detail how cross-border data transfers comply with regulations (e.g. relying on SCCs, BCRs, adequacy)
Data retentionData retention refers to the period for which records are kept and when they should be destroyed. Under the General Data Protection Regulation (GDPR), data retention is a key element of the storage limitation principle, which states that personal data must not be kept for longer than necessary for the purposes for which the personal data are processed. and deletion	Define how long data will be stored (e.g. based on legal requirements and business needs) Describe the conditions and process for securely erasing data or returning the data to the controller
Use of sub-processors	Establish whether another processor can be engaged, either without prior specific or general written authorisation of the controller Allow the data controller to object, within a reasonable time period, to the use of any particular sub-processor. Ensure the contract with the sub-processor is on the same/similar terms and incorporates the appropriate international transferThe movement of data from one place to another. This could be, for example, from one data controller to another, or from one jurisdiction to another. mechanisms where necessary Confirm that the processor is liable for any failure of its sub-processor Request a list of sub-processors being used by the processor

Using a template DPA

There are several generic template DPAs available online for organisations to use.

The DPO Centre has a FREE GDPR Policy Toolkit that includes a Data Processing Agreement Template.

Templates are a useful starting point for organisations, but we recommend you take professional advice before publication.
Do not use a template DPA in its generic form.

Data Processing Agreements must address the specific needs, legal requirements, and risks of individual data controller and processor relationships. Therefore, a template should be tailored to accurately reflect the unique context of each organisation’s data processing activities.

Updated 7th June 2024

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The DPO Centre provides a wide range of outsourced data protection services, including Data Protection Officers (DPOs), EU and UK GDPRThe UK General Data Protection Regulation. Before leaving the EU, the UK transposed the GDPR into UK law through the Data Protection Act 2018. This became the UK GDPR on 1st January 2021 when the UK formally exited the EU. Representatives.

Our experienced DPOs work with organisations across the span of industry sectors to implement best practices and ensure compliance with data protection laws.

For more news and insights about data protection follow The DPO Centre on LinkedIn

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EDPB Report: Challenges faced by DPOs in Europe

How to identify a phishing email: Safeguarding your organisation

What is a DPA and why do you need one?

Why do you need a DPA?

Common misconceptions about DPAs

Key elements of a DPA

Using a template DPA

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