CONTRACTS GOVERNING PROCESSING
GDPR agreements between companies
References to GDPR agreements between companies often mean a data processing agreement or a joint controllership agreement. It can also refer to a data transfer agreement governing the conditions for a transfer of personal data between two separate controllers. These agreement types help ensure compliance with the Regulation.
A data processing agreement must be in place where a company acting as a processor processes personal data for a company acting as a controller. The agreement must be in writing and describe the parties’ obligations regarding the handling of personal data, and GDPR lists the matters that must be covered. Among other things, it should set out:
- The purpose of processing and the types of personal data concerned.
- How personal data is protected and which technical and organisational measures will be taken.
- Procedures for reporting personal data breaches.
- If and how personal data may be transferred to third countries.
- Requirements for the processor to delete or return personal data after the engagement ends.
- Any right to appoint sub-processors and the requirements that apply to them.
When transferring personal data to another company, it is also important to transfer only the data that is necessary for the specific purpose and to inform data subjects about the transfer. Documentation of the processing is central to meeting GDPR’s accountability requirements.
A joint controllership agreement is required where two or more companies are joint controllers, meaning they jointly determine the purposes and means of processing. Such an agreement defines each party’s responsibilities and roles in relation to the joint processing, including:
- How responsibility for informing data subjects is divided between the parties.
- Procedures for upholding data subject rights, for example access, rectification and erasure.
- Which party will notify the Data Protection Authority and inform data subjects in the event of a breach.
- How costs and resources for the processing will be allocated.
It is also important to document and communicate these responsibilities internally within the organisations and externally to data subjects, for example through privacy notices. Joint responsibility means all parties can be liable for damage caused by the processing, which makes clear contractual provisions particularly important.
A data transfer agreement is often used when personal data (or other sensitive information) is transferred to another company and is intended to ensure the transfer complies with applicable data protection laws and regulations.
In general, when transferring personal data, consider information security in connection with the transfer, for example encryption in transit. This is a recurrent issue in gdpr compliance for saas companies given vendor ecosystems and frequent integrations.