Protecting Your Data: A Guide to Data Processing Agreements under GDPR
In today’s data-driven world, businesses must comply with data privacy regulations. For companies in India handling the personal data of European citizens, understanding Data Processing Agreements (DPAs) under the General Data Protection Regulation (GDPR) is crucial. A DPA is a legally binding contract between the data controller (the business collecting data) and the data processor (a third-party provider handling the data). This agreement defines the responsibilities of both parties in processing personal data, ensuring data security and compliance with GDPR rules.
Why Data Processing Agreements are Important under GDPR
The GDPR places the primary responsibility for data protection on the data controller. This means that even if an Indian business outsources data processing to a third-party vendor, it remains accountable for ensuring secure handling of the data.
A well-drafted DPA offers several advantages:
- Defines the scope and purpose of data processing: Specifies the types of personal data, processing purposes, and retention periods.
- Outlines data security obligations: Ensures the data processor implements strong security measures to protect the data.
- Establishes data subject rights: Defines how the data processor will assist in fulfilling the rights of data subjects, such as access, rectification, and deletion.
Key Features of a Data Processing Agreement
A comprehensive Data Processing Agreement includes critical components to ensure both parties are compliant with the GDPR.
- Scope and Purpose of Data Processing
The DPA defines the exact nature of the processing activities, including the data types and categories of data subjects. - Obligations of the Data Processor
It outlines the data processor’s obligations, including maintaining confidentiality, security, and complying with GDPR standards. - Sub-Processing
The DPA covers sub-processing, detailing conditions under which the data processor can engage other processors. All sub-processors must comply with GDPR. - Data Subject Rights
The DPA specifies how the data processor will assist the data controller in fulfilling data subject requests for access, correction, and deletion. - Breach Notification
It requires the data processor to notify the data controller promptly in case of a data breach. - Data Deletion or Return
After the agreement ends, the data processor must return or delete all personal data as instructed by the data controller.
GDPR Articles Relevant to Data Processing Agreements
- Article 28: Outlines the requirements for data processing agreements, detailing the roles of data controllers and data processors, as well as sub-processors.
- Article 32: Specifies the security measures data processors must take to protect personal data.
Relevance of DPAs for Indian Businesses
Even though the GDPR applies mainly to European data subjects, businesses in India must comply when handling their personal data. Non-compliance can lead to significant fines and damage to reputation.
- Standard Contractual Clauses (SCCs)
These are pre-approved clauses by the European Commission that ensure compliance with GDPR’s data transfer requirements. - Due Diligence on Processors
Before entering a DPA, businesses should evaluate the data processor’s security practices and GDPR compliance.
Recent Developments in Data Processing Agreements
The European Data Protection Board (EDPB) regularly releases guidance on interpreting the GDPR. Indian businesses must stay updated to ensure their DPAs remain compliant.
The Schrems II ruling (2020) by the Court of Justice of the European Union (CJEU) invalidated the EU-U.S. Privacy Shield, highlighting the need for strong data protection measures when transferring data internationally.
How LawCrust Can Assist
LawCrust Legal Consulting Services, a subsidiary of LawCrust Global Consulting Ltd., specialises in GDPR compliance, particularly for businesses in India. Serving clients across Mumbai, Thane, Navi Mumbai, Kolkata, Bangalore, Pune, Nashik, and Dubai, LawCrust excels in Litigation Finance, Legal Protect, Litigation Management, Startup Solutions, Hybrid Consulting Services, Mergers & Acquisitions, NRI Legal Services. We offer customised solutions to help your business stay compliant and reduce risks associated with data processing. LawCrust is committed to delivering high-quality, effective legal assistance.
Contact LawCrust Today
Don’t wait for a data breach to highlight the importance of a Data Processing Agreement. Contact LawCrust at +91 8097842911 or email bo@lawcrust.com to schedule a consultation. Let us help ensure your business is fully compliant with GDPR and best practices for data protection.