Article 28 GDPR: Difference between revisions

Revision as of 13:32, 25 August 2021

← Article 28 - Processor →

Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 28 - Processor

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 Article 32;

(d) respects the conditions referred to in paragraphs 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 Articles 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.

With regard to 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 paragraph 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 Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate sufficient guarantees as referred to in paragraphs 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 paragraphs 3 and 4 of this Article may be based, in whole or in part, on standard contractual clauses referred to in paragraphs 7 and 8 of this Article, including when they are part of a certification granted to the controller or processor pursuant to Articles 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 Article 93(2).

8. A supervisory authority may adopt standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the consistency mechanism referred to in Article 63.

9. The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form.

10. Without prejudice to Articles 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.

Relevant Recitals

Recital 81: Entrusting a Processor

To ensure compliance with the requirements of this Regulation in respect of the processing to be carried out by the processor on behalf of the controller, when entrusting a processor with processing activities, the controller should use only processors providing sufficient guarantees, in particular in terms of expert knowledge, reliability and resources, to implement technical and organisational measures which will meet the requirements of this Regulation, including for the security of processing. The adherence of the processor to an approved code of conduct or an approved certification mechanism may be used as an element to demonstrate compliance with the obligations of the controller. The carrying-out of processing by a processor should be governed by a contract or other legal act under Union or Member State law, binding the processor to the controller, setting out the subject-matter and duration of the processing, the nature and purposes of the processing, the type of personal data and categories of data subjects, taking into account the specific tasks and responsibilities of the processor in the context of the processing to be carried out and the risk to the rights and freedoms of the data subject. The controller and processor may choose to use an individual contract or standard contractual clauses which are adopted either directly by the Commission or by a supervisory authority in accordance with the consistency mechanism and then adopted by the Commission. After the completion of the processing on behalf of the controller, the processor should, at the choice of the controller, return or delete the personal data, unless there is a requirement to store the personal data under Union or Member State law to which the processor is subject.

Commentary on Article 28

Complex processing often requires outsourcing of a part of the activities to specialised service providers with whom personal data are then shared. Article 28 GDPR responds to this necessity and establishes the legal framework for a cooperation with so-called processors to ensure the protection of the data subjects' rights.

(1) Duty to Use Processors and Minimum Requirements

Processor - Processing Carried Out on Behalf of the Controller

Article 28(1) GDPR names the only requirement for the whole Article to apply: A processing is to carried out on behalf of a controller. This requirement is consistent with the legal definition of processor from Article 4(8) GDPR, according to which a processor "means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller".

The qualification as a processor consists of positive and negative characteristics.

Positively, a processor processes data "on behalf" of the controller. This especially means that they do so under instructions. For further explanations please refer to the commentary on Article 4(8) GDPR.

The processing person cannot be considered a processor if they meet the requirements of being a (joint) controller in the sense of Article 4(7) GDPR and Article 26(1)(1) GDPR (negative requirement). In particular, a processing person is not a processor if they (co-)decide on the processing purposes. Please refer to the respective commentaries for further explanations (Article 4(7) and (8) GDPR, Article 26(1)(1) GDPR).

Appropriate Technical and Organisational Measures

The controller may use “only processors providing sufficient guarantees to implement appropriate technical and organisational measures”. Processors should also meet the requirements of the GDPR as a whole and proactively ensure the protection of data subject rights (Article 28(1) GDPR).

According to Recital 81 sentence 1 GDPR "the controller should use only processors providing sufficient guarantees, in particular in terms of expert knowledge, reliability and resources, to implement technical and organisational measures which will meet the requirements of this Regulation, including for the security of processing".

The controller is responsible for assessing and selecting the appropriate processor. In doing so, the controller must take into “serious consideration” different elements, including processor’s privacy policies, terms of service, records of processing activities, management and information security policies, reports of external audits, recognised international certifications, like ISO 27000 series.^[1]

The controller should also assess the processor’s expert knowledge and technical expertise (with regard to security measures and data breaches), reliability and resources. The reputation of the processor in the market may also be a relevant factor for consideration.^[2]

According to the EDPB, the obligation to use only processors “providing sufficient guarantees” is a continuous obligation which does not end with the conclusion of the contract. Rather, the controller should, at appropriate intervals, verify the processor’s guarantees through audits and inspections where appropriate.^[3]

(2) Engagement of Other Processors by the Processor

Article 28(2)(1) GDPR first establishes the general rule that a processor may not engage any other processors. This ensures that the controller remains in control and that the fulfillment of its obligations under Article 28(1) GDPR also bears fruit.

However, Article 28(2) GDPR allows the controller to authorise the processor to engage additional processors. The authorisation must be in advance. It can be specific or in general (Article 28(1)(1) GDPR).

Due to the risks associated with a general authorisation, especially with regard to a possible loss of control, Article 28(2)(2) GDPR provides for an information obligation on the part of the processor. If they engage or replace a processor based on a general authorisation, they are obliged to inform the controller.

Furthermore, it also follows from sentence 2 that the general authorisation cannot be granted without restriction. Rather, the controller always retains the right to object to the processor's engaging or replacing decision after receiving the information.

Article 28(4) GDPR contains further obligations of the processor engaging another processor (see below).

(3) Contract or Other Legal Act Binding the Processor

If the requirement under Article 28(1) GDPR is met, i.e. the processing party is considered a processor, there is an obligation under Article 28(3) GDPR to impose rules regarding this processing that are binding for such processing.

Article 28(3) GDPR contains a list of the minimum content of these rules. The first sentence contains the core content, while the second sentence adds further minimum content. According to Article 28(6) GDPR the contract other legal act can be based, in whole or in part, on standard contractual clauses (see below).

Core Content Pursuant to Sentence 1

The core content of the contract consists of eight elements: (1) the subject-matter and (2) the duration of the processing, (3) the nature and (4) purpose of the processing, (5) the type of personal data, (6) the categories of the data subjects and (7) the obligations and (8) rights of the controller.

The description of the purpose has to be concrete and and conclusive. This is necessary for a clear demarcation from the controller. The processor must not have any leeway in this respect.^[4] With regard to the nature of processing, on the other hand, the processor may be given some leeway as to the means of processing.^[5]

To determine the rights and obligations of the controller, the following aspects, for example, must be taken into account. According to the GDPR, only the controller decides on deletion, correction and access. In particular, the controller is also responsible for checking the general permissibility and lawfulness of processing and must issue sufficient instructions. In particular, this includes the duty of the controller to appear as such and to create transparency for the data subject.^[6]

Further Minimum Content Pursuant to Sentence 2

(a) Documented Instructions

Article 28(3)(a) GDPR requires the processor to process personal data only on documented instructions from the controller, unless otherwise provided for by Union or Member State law. The provision clarifies that this processing also includes transfers in the sense of Articles 44 et seqq. GDPR.

According to the EDPB, the instructions shall refer to each processing activity and can include “permissible and unacceptable handling of personal data, more detailed procedures, ways of securing data, etc. The processor shall not go beyond what is instructed by the controller”.^[7]

The contract can provide the parties with procedures and templates to communicate “documented” instructions. Instructions, however, can be given by different means (e.g. e-mail), as long as it is possible to keep records of them.

The contract should specify the requirements for transfers to third countries or international organisations, taking into account the provisions of Chapter V of the GDPR.

Where Union or Member State law requires a processor to process the data, the processor shall be exempt from the obligation to do so only on documented instructions. However, they then shall inform the controller of that legal requirement before the processing, unless that law prohibits such information on important grounds of public interest.

(b) Confidentiality

Persons authorised to process the personal data are employees and temporary workers involved in the processing activities. Under Article 28 (3)(b) GDPR, authorised persons are committed to confidentiality. This may be arranged either via a specific contractual agreement or statutory obligations already in place.

(c) Measures Required by Article 32 GDPR

Reference is made to the commentary on Article 32 GDPR.

(d) Engaging a Sub-Processor

The contract must further respect the conditions referred to in paragraphs 2 and 4 (see above and below).

(e) Assisting With the Controller's Obligation to Respond to Data Subject's Requests

Dealing with data subjects' rights requests is an obligation of the controller under Articles 12-22 GDPR. However, according to Article 28(3)(e) GDPR, the processors shall be obliged to assist the controller for the fulfilment of its obligations.

Typically, the assistance consists in promptly forwarding any request received from data subjects. However, in some circumstances, the processor will be given more specific, technical duties, especially when it is in the position of extracting and managing the personal data.

The contract should list the technical and organisational measures adopted by the processor to ensure the assistance.

(f) Assisting With the Controller's Obligations under Articles 32 to 36 GDPR

Under Article 28(3)(f) GDPR, the agreement between the parties provides further details as to how the processor assist the controller in ensuring compliance with Articles 32 - 36 GDPR.

Reference to Article 32 GDPR means that the processor shall provide assistance on how to best implement effective security measures. This provision seems to create a sort of consultancy role on the processor who not only has to respect Article 32 GDPR in its own structure, but also has to provide assistance to improve the controller’s systems, where necessary.

In case of data breach (Articles 33 - 34 GDPR), the processor shall notify the controller without undue delay.^[8] The EDPB also recommends “that there is a specific timeframe of notification (e.g. number of hours) and the point of contact for such notifications be provided in the contract. The contracts should finally specify how the processor shall notify the controller in case of a breach”.^[9]

The processor must provide assistance in case the controller carries out a Data Protection Impact Assessment (Article 35 GDPR) or if a prior consultation before a DPA is needed under Article 36 GDPR.

(g) Deleting or Returning Personal Data

The controller can decide whether personal data (including existing copies) shall be deleted or returned after the end of the provision of the processor's services unless the Union or Member State law requires storage of the personal data. If the controller chooses that the personal data be deleted, the processor should ensure that the deletion is performed in a secure manner. The processor should confirm to the controller that the deletion has been completed within an agreed timescale and manner.^[10]

(h) Provision of Compliance Demonstrating Information and Contribution to Audits

According to Article 28(3)(h) GDPR, the processor should be obliged to provide to the controller all information necessary to demonstrate compliance with all the aforementioned obligations and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.^[11]

Obligation to Notify the Controller in Case of Infringing Instructions

Finally, according to Article 28(3) GDPR, the processor must immediately inform the controller if, in its opinion, an instruction infringes the GDPR or other Union or Member State data protection provisions. It is advisable to record the results of the inspections carried out by the person responsible so that, if necessary, proof of the inspections carried out can be provided to the supervisory authorities at a later date.

(4) Sub-Processing

While Article 28(2) GDPR specifies the conditions under which the processor may engage other processors, Article 28(4) GDPR contains the legal consequences of subcontracting.

The first sentence obliges the original processor to conclude a contract or other legal act with the sub-processor that contains the same obligations as the contract or other legal act concluded between the controller and the original processor. The EDPB also clarified that “this includes the obligation under Article28(3)(h) to allow for and contribute to audits by the controller or another auditor mandated by the controller”.^[12]

The second sentence...