General Data
Protection Regulation

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.

What does it mean?

You should use processors of personal data which can provide sufficient guarantees that they have implemented technical or organisational measures to safeguard the data of the data subject.

Providing sufficient guarantees means proving that the processor complies with keeping the data subject’s data safe. So, you must choose a reliable data processor to provide sufficient guarantees.

This should all be documented in a data processing agreement or a similar manner.

Appropriate technical and organisational measures are a foundational concept of the GDPR. 

To determine an “appropriate” measure, you should conduct a risk assessment of your processing of personal data regarding the data subject. 

Processing sensitive personal data requires stricter measures to ensure GDPR compliance than, e.g. someone signing up for a newsletter. The risk assessment, therefore, assesses the details of your specific processing so that you can enforce appropriate technical and organisational measures.

The risk assessment allows you to determine whether a measure is appropriate.

You cannot use any processor on your behalf unless they have provided sufficient guarantees to treat the personal data in compliance with the GDPR.

The data processor must implement appropriate technical and organisational measures and shall agree to not use other data processors without prior consent from the controller. Furthermore, the controller and the data processor must sign a data processing agreement which determines specific requirements for processing personal data, e.g. the type of personal data and the duration of the processing.

All data controllers must sign a data processing agreement with their data processors. The data processing agreement shall contain the requirements listed in Article 28(3), which, e.g. require all processors to get prior authorisation from the data controller for the use of any subprocessors.

The processor of a processor is also called a subprocessor. A subprocessor is a vendor to a vendor in the context of processing personal data.

The data controller is responsible for the data processing agreement as the personal data controller. This responsibility also entails auditing that the data processor complies with the data processing agreement.

A data processing agreement must fulfil the requirements stated in article 28 of the GDPR. 

One can find standard contractual clauses on the website of the European Union. These are templates to make a data processing agreement.

Yes. It is the controller’s responsibility to document compliance with the GDPR, and you must also be able to demonstrate that processors comply with the data processing agreement.

Some data processing agreements will state that the data processor needs prior specific authorisation from the controller to choose a new processor for parts of the processing (subprocessor). This prior authorisation gives the controller increased data processing control of how the personal data is treated in the value chain, thereby increasing the data subjects’ safety.

Data processing agreements can also contain a general written authorisation where a specific type of subprocessor is allowed to be used for agreed-upon personal data without explicit prior authorisation. Though, the processor should still inform the controller in advance of any intended changes to enable the controller to object to changes.

If you are the data processor and wish to add or replace a subprocessor, then you should inform the data controller in writing. The same applies to changes in the processing of personal data that a subprocessor performs. 

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