28 GDPR (2020). from law enforcement authorities). ISO/IEC 27701, adopted in 2019, added a requirement additional to ISO/IEC 27002, section 15.1.2. 8.5.4 Notification of PII disclosure requests. DataSuperSecure, in our example, may decide what type of technical solution to use. ISO/IEC 27701, adopted in 2019, added a requirement additional to ISO/IEC 27001, section 4.1. 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. The next text section is called Technical and organizational measures in accordance to Art. Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, Article 91. If authorisation is given, the processor must put in place a contract with the sub-processor. It must be done on behalf of a third party, 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. 28 GDPR (January 2020) Processing of personal data relating to criminal convictions and offences, Article 11. Other linguistic versions help to clarify the meaning of the word “processor”. The U.K. Information Commissioner’s Office recently issued draft guidelines on explaining AI, basically applying the same requirements also to AI-assisted decision-making, not on the basis of Article 22 of the GDPR, but on the basis of the general GDPR principles of fairness, transparency and accountability (see Part 1, p. 10–11). 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. It should also make its policy available to the customer. Position of the data protection officer, Article 39. 日本語 ... mandatory Processor provisions set out in Article 28 of the Regulation. Here is the relevant paragraphs to article 28(2) GDPR: 8.5.6 Disclosure of subcontractors used to process PII. The information disclosed should also include the countries and international organizations to which subcontractors can transfer data (see 8.5.2) and the means by which subcontractors are obliged to meet or exceed the obligations of the organization (see 8.5.7). Data protection by design and by default, Article 30. Processing under the authority of the controller or processor, Article 5. The confidentiality agreement, whether part of a contract or separate, should specify the length of time the obligations should be adhered to. A PII controller’s obligations can be defined by legislation, by regulation and/or by contract. Subject-matter and objectives, Article 25. The terms of the contract that relate to Article 28(3) must offer an equivalent level of protection for the personal data as those in the contract between the controller and processor. Assessing Google Cloud based on Article 28 Article 28 of the GDPR lays out the requirements of a data processor who processes data on behalf of the data controller. The English and the Hungarian versions use the phrase "on behalf of" the controller. National data protection authorities. EU countries have set up national bodies responsible for protecting personal data in accordance with Article 8(3) of the Charter of Fundamental Rights of the EU.. European Data Protection Board. Here you can find a commentary on the first 21 GDPR Articles, profiles on 32 DPAs and profiles on 32 GDPR jurisdictions. 5. When this opinion remains silent on one or more clauses of the SCCs submitted by the Danish SA, it 11/30/2020; 21 minutes to read; r; In this article. Their obligations may be established based on more “factual than formal analysis” (Jehovah’s witnesses, Opinion of Advocate General**). General principle for transfers, Article 45. ISO/IEC 27701, adopted in 2019, added additional ISO/IEC 27002 guidance for PII processors. Derogations for specific situations, Article 50. International cooperation for the protection of personal data, Article 53. The UK GDPR refers to a contract ‘or other legal act’. (d) respects the conditions referred to in paragraphs 2 and 4 for engaging another processor; Here is the relevant paragraph to article 28(3)(d) GDPR: (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; Here is the relevant paragraph to article 28(3)(e) GDPR: The organization should provide the customer with the means to comply with its obligations related to PII principals. Which is why we’ve translated every chapter and article of the GDPR into something a person might be able to reasonably understand and implement. Url-link to highlighted text was copied to the clipboard! DLA Piper’s Article 28 GDPR working group produced this “Example Data Protection Addendum Addressing Article 28 GDPR (Processor Terms) and Incorporating Standard Contractual Clauses for Controller to Processor Transfers of Personal Data from the … Answers to these questions will separate those who make the decisions (controllers) from those who execute them (processors). They will come into affect on May 25th 2018. This Regulation lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data. 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. What does it mean concretely? It does not have any flexibility to decide what data are processed and for what purpose. 1. Representatives of controllers or processors not established in the Union, Article 29. The data transfer to third countries or international organizations is … Provisions for the use of subcontractors to process PII should be included in the customer contract. One example is the definition of processor in article 4(8). English version of the GDPR (EUR-Lex) Swedish version of the GDPR. If an organization is passing data to a third-party for processing on its behalf, then the organization will need to conduct appropriate due diligence on its third-party vendors to ensure compliance with the GDPR and have a data sharing agreement to set forth the terms of the processing. Where public disclosure of subcontractor information is assessed to increase security risk beyond acceptable limits, disclosure should be made under a non-disclosure agreement and/or on the request of the customer. The capability for the return, transfer and/or disposal of PII should be managed in a secure manner. The GDPR*, which will come into force on 25 May 2018, represents a major evolution in EU data protection law. Welcome to gdpr-info.eu. In order to contribute to the consistent application of this Regulation throughout the Union, the supervisory authorities shall cooperate with each other and, where relevant, with the Commission, through the consistency mechanism as set out in this Section. 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. The organization should, in the case of having general written authorization, inform the customer of any intended changes concerning the addition or replacement of subcontractors to process PII, thereby giving the customer the opportunity to object to such changes. You might even have attempted to read the source European Parliament on General Data Protection Regulation 4.5.2016 L 119/1 only to find that the human nervous system was designed to violently reject exposure to such dense legalese.. Here is the relevant paragraph to article 28 GDPR: 6.12.1.2 Addressing security within supplier agreements. Right to erasure (‘right to be forgotten’), Article 18. (b) ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; ISO/IEC 27701, adopted in 2019, added a requirement additional to ISO/IEC 27002, section 13.2.4. © DPO LLC  2018-2020 |   Privacy Notice  |   About. For example, this can include the correction or deletion of PII in a timely fashion. What is the difference between a controller and a processor? In these cases, the organization should notify the customer of any such request within agreed timeframes and according to an agreed procedure (which can be included in the customer contract). The GDPR superseded the UK Data Protection Act 1998 on 25 May 2018. Article 28 GDPR should further stipulate and clarify how the provisions of Article 28(3) and (4) will be fulfilled. The contract between the organization and any PII processor processing PII on its behalf should require the PII processor to implement the appropriate controls specified in Annex B, taking account of the information security risk assessment process (see 5.4.1.2) and the scope of the processing of PII performed by the PII processor (see 6.12). According to Article 28 from the EU GDPR, “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.” The UK GDPR defines a controller and processor as: — the assurance of assistance by the PII processor if prior consultations with relevant PII protection authorities are needed. 2. The GDPR contains 99 articles that define its requirements and rights granted to EU citizens, GDPR operations and structure, and penalties. Here is the relevant paragraph to article 28(4) GDPR: 5. 1. 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. Cooperation with the supervisory authority, Article 33. The terms of the contract that relate to Article 28(3) must offer an equivalent level of protection for the personal data as those in the contract between the controller and processor. GDPR Decision Database GDPR Knowledge Here you can find 500+ national GDPR decisions, arranged by GDPR Article, DPAs or the relevant Courts. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (a) the pseudonymisation and encryption of personal data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. Tasks of the data protection officer, Article 41. In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed. Information to be provided where personal data have not been obtained from the data subject, Article 15. This can be in the form of appropriate clauses in the customer contract, or can be a specific “one-off” agreement. 6. 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. With regard to point (h) of the first subparagraph, the, In order to contribute to the consistent application of this Regulation throughout the Union, the, General Data Protection Regulation (EU GDPR). The Commission should monitor the functioning of decisions on the level of protection in a third country, a territory or specified sector within a third country, or an international organisation, and monitor the functioning of decisions adopted on the basis of Article 25(6) or Article 26(4) of Directive 95/46/EC. Article 1. GDPR.EU is a website operated by Proton Technologies AG, which is co-funded by Project REP-791727-1 of the Horizon 2020 Framework Programme of the European Union. The purposes and scope of the General Data Protection Regulation. The service provider, DataSuperSecure, executes the orders of the company. Here is the relevant paragraph to articles 28(5), 28(6), and 28(10) GDPR: 5.2.1 Understanding the organization and its context. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. If the organization decides to not require the subcontractor to implement a control from Annex B, it should justify its exclusion. Processors must only act on the documented instructions of the controller and they can be held directly responsible for non-compliance with the GDPR obligations, or the instructions provided Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level … Continue reading Art. Right of access by the data subject, Article 17. 6. Article 28 of the GDPR is one of the key sections for processors and controllers that use processors. 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; Here is the relevant paragraph to article 28(3)(a) GDPR: The organization should ensure that PII processed on behalf of a customer are only processed for the purposes expressed in the documented instructions of the customer. Information to be provided where personal data are collected from the data subject, Article 14. 1. The GDPR. EDPB, Guidelines 7/2020 on the Concepts of Controller and Processor in the GDPR (2020). 2. ISO/IEC 27701, adopted in 2019, added a requirement additional to ISO/IEC 27002, section 18.1.1. Source: EUR-lex. The organization should develop and implement a policy in respect to the disposal of PII and should make this policy available to customer when requested. Conditions applicable to child's consent in relation to information society services, Article 9. Unfortunately, Brussels has not provided a clear overview of the 99 articles and 173 recitals. 8. The terms of the contract can provide a basis for contractual sanctions in the event of a breach of those responsibilities. It implies a delegation of the processing activities (or part of them) from the controller to an external organization or individual who executes the instructions received. Where a customer depends on the organization for information or technical measures to facilitate meeting the obligations to PII principals, the relevant information or technical measures should be specified in a contract. The organization should have a written contract with any subcontractors that it uses for PII processing on its behalf, and should ensure that their contracts with subcontractors address the implementation of the appropriate controls in Annex B. A company decides to use the DataSuperSecure cloud service to store its clients’ data. The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form. NOTE For such audit purposes, compliance with relevant and applicable security and privacy standards such as ISO/IEC 27001 or this document can be considered. These obligations can include matters where the customer uses the services of the organization for implementation of these obligations. In order to achieve the customer’s purpose, there can be technical reasons why it is appropriate for the organization to determine the method for processing PII, consistent with the general instructions of the customer but without the customer’s express instruction. Both controllers and processors are obliged under Article 32 to put in place appropriate technical and organisational measures to ensure the security of any personal data they process which may include, as appropriate: Article 27 Representatives of controllers or processors not established in the Union. ISO/IEC 27701, adopted in 2019, added additional ISO/IEC 27002 guidance for PII controllers. Similar to Articles 28 ff. Here is the relevant paragraphs to article 28(3)(h) GDPR: The organization should inform the customer if, in its opinion, a processing instruction infringes applicable legislation and/or regulation. Learn more about GDPR, ... English. For example, in order to efficiently utilize network or processing capacity it can be necessary to allocate specific processing resources depending on certain characteristics of the PII principal. 2. It is in this light that the SCCs submitted to the Board for opinion is analysed. Processing of the national identification number, Article 88. Here is the relevant paragraph to article 28(3)(b) GDPR: 6.10.2.4 Confidentiality or non-disclosure agreements. 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. Data protection impact assessment, Article 37. Relationship with previously concluded Agreements, Article 98. Review of other Union legal acts on data protection, Article 99. You have to ask yourself questions, like “Who made the decision to process data?”, “Who decides what data are to be processed?”, “Who determines the goal of the processing?”, and so on. Denmark Supervisory Authority, DK SA Standard Contractual Clauses for the purposes of compliance with art. (c) takes all measures required pursuant to Article 32; 1. On 24 June 2020, the EU Commission issued a Report into the first two years of the operation of GDPR (the Report). Some jurisdictions require that the contract include the subject matter and duration of the processing, the nature and purpose of the processing, the type of PII and categories of PII principals. Adherence 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 compliance with the requirements set out in paragraph 1 of this Article. The organization’s ability to verify if the instruction infringes legislation and/or regulation can depend on the technological context, on the instruction itself, and on the contract between the organization and the customer. The organization should ensure that individuals operating under its control with access to PII are subject to a confidentiality obligation. Processor. 9. Right to an effective judicial remedy against a controller or processor, Article 80. OJ L 127, 23.5.2018 as a neatly arranged website. Transfers on the basis of an adequacy decision, Article 46. They help to determine the responsibilities of implicated parties according to the actual roles they play (Guidelines 7/2020). Covered by Article 15, the right of access is the right of individuals to request information from a Controller about how their data is being used as well as a copy of the data itself.. The agreements should call for independently audited compliance, acceptable to the customer. The standard processor agreement has been adopted by the Danish SA pursuant to art. GDPR: Article 28 Checklist Pursuant to Article 28, contracts between controllers and processors (and processors and subprocessors) must do the steps included in this downloadable checkist. Here is the relevant paragraph to articles 28(3)(f), 28(3)(e) and 28(9) GDPR: The organization should ensure, where relevant, that the contract to process PII addresses the organization’s role in providing assistance with the customer’s obligations (taking into account the nature of processing and the information available to the organization). (81) 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. 1. It would translate as the person or organization responsible for the processing. 7. The General Data Protection Regulation (EU) 2016/679 (GDPR) is a regulation in EU law on data protection and privacy in the European Union (EU) and the European Economic Area (EEA). If the organization decides to not require the PII processor to implement a control from Annex B, it should justify its exclusion (see 5.4.1.3). The term used in the English version of the General Data Protection Regulation (GDPR) remains difficult to understand to a non-legal audience. The organization shall include among its interested parties (see ISO/IEC 27001:2013, 4.2), those parties having interests or responsibilities associated with the processing of PII, including the PII principals. It does not mean that the processor does not have any discretion as to how it carries out its duty. 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. 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. Entry into force and application, Opinion 1/2010 on the concepts of “controller” and “processor”, Opinion 14/2019 on the draft Standard Contractual Clauses submitted by the DK SA (Article 28(8) GDPR), DK SA Standard Contractual Clauses for the purposes of compliance with art. Information disclosed should cover the fact that subcontracting is used and the names of relevant subcontractors. 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. Right to an effective judicial remedy against a supervisory authority, Article 79. General Data Protection Regulation Summary. Version Beta 0.6, Copyright © 2018 All rights reserved to PrivacyTrust, Article 5: Principles relating to processing of personal data, 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, Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject, Section 2 : Information and access to personal data, 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 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, Section 4 : Right to object and automated individual decision-making, Article 22 : Automated individual decision-making, including profiling, Article 24 : Responsibility of the controller, Article 25 : Data protection by design and by default, Article 27 : Representatives of controllers or processors not established in the Union, 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 33 : Notification of a personal data breach to the supervisory authority, Article 34 : Communication of a personal data breach to the data subject, Section 3 : Data protection impact assessment and prior consultation, Article 35 - Data protection impact assessment, Article 37 Designation of the data protection officer, Article 38 - Position of the data protection officer, Article 39 - Tasks of the data protection officer, Section 5 Codes of conduct and certification, Article 41 - Monitoring of approved codes of conduct, Article 44 - General principle for transfers, Article 45 - Transfers on the basis of an adequacy decision, Article 46 - Transfers subject to appropriate safeguards, 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, Article 53 General conditions for the members of the supervisory authority, Article 54 Rules on the establishment of the supervisory authority, Article 56 Competence of the lead supervisory authority, Article 60 Cooperation between the lead supervisory authority and the other supervisory authorities concerned, Article 62 Joint operations of supervisory authorities, Article 65 Dispute resolution by the Board, Section 3 European data protection board, Article 68 European Data Protection Board, 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 82 Right to compensation and liability, Article 83 General conditions for imposing administrative fines, 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 91 Existing data protection rules of churches and religious associations, Article 95 Relationship with Directive 2002/58/EC, Article 96 Relationship with previously concluded Agreements, Article 98 Review of other Union legal acts on data protection, Article 99 Entry into force and application.