What’s new about Processor Contracts?

The GDPR makes written contracts between controllers and processors a general requirement, rather than just a way of demonstrating compliance with the seventh data protection principle (appropriate security measures) under the DPA.

These contracts must now include certain specific terms, as a minimum.

These terms are designed to ensure that processing carried out by a processor meets all the requirements of the GDPR (not just those related to keeping personal data secure).

The GDPR allows for standard contractual clauses from the EU Commission or a supervisory authority (such as the ICO) to be used in contracts between controllers and processors – though none have been drafted so far.

The GDPR envisages that adherence by a processor to an approved code of conduct or certification scheme may be used to help controllers demonstrate that they have chosen a suitable processor. Standard contractual clauses may form part of such a code or scheme, though again, no schemes are currently available.

The GDPR gives processors responsibilities and liabilities in their own right, and processors as well as controllers may now be liable to pay damages or be subject to fines or other penalties.