DPA Agreement Template - GDPR
If you have specific questions regarding the GDPR generally or data processing agreements specifically, please don’t hesitate to get in touch. This article should not be relied upon, and is not being presented as, legal advice. This is a complex area of privacy law and you cannot base your decisions on a cursory overview of the topic, such as this one.
A DPA agreement or Data Processing Agreement is one entered into between the data controller and data processors, under the GDPR. The purpose of a DPA agreement is to evidence the compliance of the data processor with relevant GDPR requirements.
Why do we need this?
It is a requirement under the GDPR if you contract out the processing of data.
What is required to be included in a DPA agreement?
Under Article 28(3) of the GDPR, a DPA must include, at least, provisions stating that the processor:
(a) processes the personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
(b) ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(c) takes all measures required pursuant to Article 32;
(d) respects the conditions referred to in paragraphs 2 and 4 for engaging another processor;
(e) taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III;
(f) assists the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 taking into account the nature of processing and the information available to the processor;
(g) at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data;
(h) makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.
With regard to point (h) of the first subparagraph, the processor shall immediately inform the controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions.