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DATA-PROTECTION  September 2012

DATA-PROTECTION September 2012

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Subject:

Re: Data Processing Agreements

From:

Rajee Sritharan <[log in to unmask]>

Reply-To:

Rajee Sritharan <[log in to unmask]>

Date:

Mon, 17 Sep 2012 14:24:19 +0000

Content-Type:

text/plain

Parts/Attachments:

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text/plain (1 lines)

Hi,



Data Protection clauses:



1) If the data is to be processed in the UK/ EEA,  contract should  include clauses on

Security 

Audit rights

Breach reporting (How soon do you want them to report a breach to you and what information may be required)

Liability: you can have both caped/ limited liability or uncapped liability/unlimited liability ( based on what you are looking to cover)- this may include fines, credit monitoring etc.

SAR support

Approval/ notification period if the supplier wishes to subcontract  and obligations as to implementing a Model Clauses should the subcontractor is based outside of EEA

Exit clauses- what do you expect them to do with your data at the end of the contract  



2) If the Data to be processed outside of EEA, then it must have both the Standard Model Clauses and additional DP clauses

a) Model Clauses agreement - Need to be signed if the data to be processed/ hosted outside the UK ( this may need to in place with a sub-subcontractor i.e. not your initial supplier, depending on who is the processor in the third country, you need to establish this with your supplier)- These Model clauses are not designed to protect the Data Controller i.e. your organisation. Standard Model Clauses are there to make sure that the individuals are protected, when their data  is processed/ sent to suppliers in third countries ( i.e. outside of EEA). Therefore, they do not include any clauses on breach reporting, liability and audit rights. 



b)in addition the contract should also  include clauses on

Security 

Audit rights

Breach reporting (How soon do you want them to report a breach to you and what information may be required)

Liability: you can have both capped/ limited liability or uncapped liability/unlimited liability ( based on what you are looking to cover)- this may include fines, credit monitoring etc.

SAR support

Approval/ notification period if the supplier wishes to subcontract  and obligations as to implementing Model Clauses, should the subcontractor is based outside of EEA

Exit clauses- what do expect them to do with your data at the end of the contract  





Hope this is helpful.

Rajee



-----Original Message-----

From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Paul Ticher

Sent: 17 September 2012 14:41

To: [log in to unmask]

Subject: Re: [data-protection] Data Processing Agreements



It's always worth trying to negotiate an indemnity clause specific to Data Protection breaches brought about by the Data Processor (especially given the size of potential penalties).



It's worth trying to ensure that the clause covers:

    *    monetary penalties from the Information Commissioner

    *    any compensation legally due to affected individuals

    *    your costs in putting the damage right (e.g. recontacting people to 

verify the information you hold)

    *    any action that you think you ought to take, even if not obliged to 

(e.g. paying for a year's subscription to an ID fraud alert service for all those affected can add up to a lot of money)



The first two are probably pretty hard for the Data Processor to wriggle out of; the second two may be more contentious.



The other problem is if you are trying to save money by using consumer- or small-business-oriented services with take-it-or-leave-it terms and conditions (and quite possibly based outside the UK).  I'm thinking of things like Survey Monkey or Dropbox, for example, which I keep coming across in the voluntary organisations I work with.  There's usually no option to negotiate, and the t&cs never, in my experience, accept liability for anything.





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:

www.paulticher.com/data-protection-services





----- Original Message ----- 

From: "Murphy, April" <[log in to unmask]>

To: <[log in to unmask]>

Sent: Monday, September 17, 2012 12:54 PM

Subject: Data Processing Agreements





Hi All,







Just a bit of a query. When you have a data processing contract in place 

with an organisation who is dealing with your personal information on your 

behalf, as well as identifying explicitly what the organisation can and 

cannot do with the information and what security measures they need to have 

in place; does anyone include (or think that you should include) a clause, 

that if the Data Processor has a security breach that they are responsible 

for (as it goes against the instructions in the agreement), that the Data 

Processor are then liable for the fine (if applicable) from the ICO? Because 

I know it is the Data Controller who is held responsible by the ICO not the 

Data Processor, but what happens if you have done everything in your power 

i.e. put the clauses in place and you audit them?







So I guess my query is, do people think that you need to/can you include a 

clause like this or would the ICO in this instance not hold you responsible?







Thanks for your help in advance.







Kind Regards,







April Murphy



Information Governance Support Officer







Tel:  0151 443 4660



Knowsley Council êComputer Centre êWestmorland  Road êHuyton êL36 9GL







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distributed without consent. If you are not one of the intended recipients, 

please notify the sender immediately and do not disclose, distribute, or 

retain this email or any part of it and do not take any action based on it.



Unless expressly stated, opinions in this email are those of the individual 

sender, and not of Knowsley MBC. Legally binding obligations can only be 

created for, or be entered into on behalf of, Knowsley MBC by duly 

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