I have been involved in drawing up or reviewing numerous Data Processor
contracts and Data Sharing agreements between joint Data Controllers. In
every case I have recommended a clause specifying that the Data Processor
cannot subcontract anything without prior agreement of the Data Controller
(not to be unreasonably withheld) and no joint Data Controller can
subcontract anything without agreement from the other(s). Obviously - to my
mind - if someone agrees to any sub-contracting arrangement they accept
their share of the responsibility for it.
Best wishes,
Paul
Paul Ticher
0116 273 8191
www.paulticher.com
22 Stoughton Drive North, Leicester LE5 5UB
For continuous priority support on Data Protection, sign up to my support
service:
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----- Original Message -----
From: "Lawrence Serewicz" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, October 04, 2013 11:45 AM
Subject: Re: WP29 Opinion on data processors (who faces the music?)
> Dear All
>
>
>
> Following on from this issue, with the Scottish Borders Breach issue in
> the background, we can say the following based on my reading of the ICO
> guidance.
>
>
>
> In any contract, there is a data controller (DC) and a data processor (DP)
> or a joint data controller (DC and DC).
>
>
>
> If you have the DC to DP contract, the DC needs to ensure that the DP meet
> duties of principle 7 and other issue associated with their role as DP ie
> instructions from the DC.
>
>
>
> If you have the DC to DC contract, then you need to negotiate who is doing
> what in regard to the PD ie who handles SARs and who handles security.
>
>
>
> However, where I start to get fuzzy (it being Friday) is where the
> relationship is DC to DC and the other DC sub contracts, ie obtains a DP
> for the work. I can see a situation where an organisation wants to
> deliver a service, it commissions someone to do it, the other data
> controller. The second data controller, in turn, subcontract it to a DP
> to do the work.
>
>
>
> In that scenario is the first organisation, the one that commissioned the
> work still a joint data controller for that Data Processor? By that, does
> the Data protection responsibilities passport through? If so, is that to
> be negotiated between the DCs? I think so, but I wanted to check what
> others view.
>
>
>
> A related scenario is that the first DC contracts with another DC to
> deliver a service. The second data controller does all of the work
> dealing with the clients, collecting their data, processing it, and
> storing it to deliver the service.
>
>
>
> If something goes wrong, is the original DC still responsible for the
> breach (assuming the contract does not make it clear about DP
> responsibilities)?
>
>
>
> I would say yes, *unless* it is clear in the contract between the DCs that
> the second DC, who suffered the breach, is responsible for the security of
> the data. If that is not in the contract, then the two DCs act as joint
> data controllers full stop for everything as they have not made it clear
> in the contract who is responsible for what.
>
>
>
> I would be interested in your thoughts on these scenarios.
>
>
>
> The lesson would be that if you are a DP and your DC does not spell out
> the DPA requirements they can get away with a lot because it is the DC who
> is on the hook to the ICO re DPA breaches.
>
>
>
> Best,
>
>
>
> Lawrence
>
>
>
>
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Andrew Cormack
> Sent: 02 October 2013 08:35
> To: [log in to unmask]<mailto:[log in to unmask]>
> Subject: Re: [data-protection] WP29 Opinion on data processors
>
>
>
> Worth making sure that your contractor knows that having signed a contract
> as Data Processor they *can't* then independently determine purposes and
> means. I've come across too many situations where a contractor asserted
> they were a data processor, but nonetheless went off and did their own
> thing with the data or refused to follow the Data Controller's
> instructions in other ways :(
>
>
>
> Andrew
>
>
>
> --
>
> Andrew Cormack
>
> Chief Regulatory Adviser, Janet
>
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