I am not sure you are in breach for the reasons you state:
1. I am not convinced that you do not have a written contract. A written contract does not need to be signed or "bespoke" for a particular dealing. Why can't the normal conditions of posting of, say, Royal Mail fulfil that requirement. I think it does.
2. Nor do you need to have language which tracks the schedule 2 stipulation on "instructions" (although that is common in bespoke Data Processing Agreements). Of course, we should strictly check the Ts and Cs of the carrier, and I haven't yet, but I imagine there is something in the RM terms certainly saying that they RM will not open the package, send it other than as addressed, and so on (all things other "acting in accordance with the instructions" which were to deliver the item as addressed).
3. Likewise, you do not need to have language which directly mirrors the 7th principle (again, although common in bespoke DPAgmts). I imagine (I admit I'm guessing as I've not checked) that there is something in the Ts and Cs which reflect some obligation to keep post secure.
Whether the post is adequately secure of course depends on what is included in the package, and that is for the data controller to take a view on..... and not use RM ordinary post or courier unless the risk assessment indicates it is fine.
Renzo Marchini
Counsel
Dechert LLP
+44 (0) 20 7184 7563 direct
+44 (0) 20 7184 7001 fax
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www.dechert.com
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Phil Bradshaw
Sent: 03 June 2012 18:55
To: [log in to unmask]
Subject: [data-protection] Principle 7 - Data Processing
I need to transmit some personal data to a third party. Section 1 definition suggests transmission is a type of processing. I locate and use a 'reputable' courier service.
They lose the package. Am I in breach of principle 7 for not having a written contract with them which complies with Schedule 1 Part II i.e. a contract— (i)which is made or evidenced in writing, and (ii)under which the data processor (the courier) is to act only on instructions from the data controller, and (b)the contract requires the data processor to comply with obligations equivalent to those imposed on a data controller by the seventh principle.
What if my courier is the Royal Mail ?
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