Reading these responses with interest as I'm currently looking at our template agreement.
I spoke to a couple of people at the ICO who pointed out that in the event of a breach involving a data controller and a data processor, they will be the ones to decide who is at fault and levy fines as appropriate. This seems to me to make any indemnity clause pointless because surely the only way you could enforce one is where there is clear fault on the part of one party over the other, and this will effectively be decided by the ICO.
If you look at the fines that have involved a data processor situation, the data controller's fine has been as a result of failure to monitor or to ensure the agreement in place is robust enough. I imagine it would be quite difficult to get a data processor to accept liability for this, or indeed for any fault of the data controller.
CYPS Information Governance Officer
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