Last week, the entry into force of the EU’s general data protection regulation (GDPR) attracted much attention. Practically any business that processes the personal data of EU citizens is affected and has to take serious measures – organizational and technical – to comply with the new rules. One important element of the legislation is the requirement for data controllers to enter into a data processing agreement (DPA) with data processors.
To help you prepare for the GDPR, we held a webinar last Wednesday about the particularities of a data processing agreement and the process of signing one with Tresorit. In this blogpost, we aim to summarize the most important elements of our webinar to give you a comprehensive picture of everything you should know about a DPA.
What is a DPA?
A data processing agreement (DPA) is a legally binding document to be entered into between the controller and the processor in writing or in electronic form. It regulates the particularities of data processing – such as its scope and purpose – as well as the relationship between the controller and the processor.
Why is a DPA important?
The GDPR requires data controllers to take measures to ensure the protection of personal data they handle. If data controllers decide to outsource certain data processing activities, they must be able to demonstrate that their suppliers and sub-processors also provide sufficient guarantees to protect the data and act in a GDPR compliant manner.
When do you need to sign a DPA?
If you are a controller and, as a result of outsourcing, you wish to transfer your data to a third-party, for example a cloud provider, you need to sign a DPA with that third party.
Do processors have to sign a DPA with their sub-processors?
Yes, even if you are not a controller, but a processor, and decide to outsource your activities you’ll need to sign a DPA and ensure that any other sub-processor in the chain complies with the requirements of the GDPR.
What is data processing?
The GDPR regulates data processing in a broad manner. It says that any operation performed on personal data amounts to processing. For example, the acts of collecting, storing, disclosing or erasing personal data are all considered processing and fall under the GDPR.
Who is a data controller?
Data controller is the person who determines the purpose and means of the data processing.
Who is a data processor?
The person who processes data on behalf of a controller, in accordance with the controller’s instructions.
What to watch out for when signing a DPA?
⇒ One of the most important element of a DPA is whether your processors provide sufficient guarantees for the protection of the data transferred to them. Under the GDPR, if there is a data breach, even if it’s on the side of the processor, you, as a controller, might be held responsible. Hence, it is important to choose processors that implement sufficient measures to minimize the risk of a data breach. Furthermore, processors should also take sufficient measures to decrease the effect of a breach and to inform you in due course.
⇒ Data processors should not be able to process your data for any other purpose than what’s the purpose of your DPA and of the outsourcing. Accordingly, you should check how the processor will use the data you transfer to it; whether it is in accordance with your contract or whether the processor intends to use the data for its own purposes. Hence, you need to make sure that the scope of the processor’s DPA is not broader than the original legal basis you have for processing the personal data.
What kind of personal data does Tresorit process on your behalf?
Because of our client-side encryption, we cannot access our users’ encrypted content and we cannot use encrypted information to identify any individual. Accordingly, under the GDPR, such content is not deemed to be personal data from our perspective. However, when providing our services, we process certain non-encrypted data including personal data relating to the users administered by our users (e.g. such as user names, email addresses, file activities and login-in attempts). With respect to such limited data, we act as a data processor. Our DPA covers this very limited personal data we have on our customers, while the data in customers’ files fall outside the DPA’s scope.
Who should execute a DPA with Tresorit?
You need to execute our DPA if you have a business subscription (Tresorit Solo, Small Business, Business and Enterprise) with us and the GDPR applies to you. The latter question is something that has to be assessed on a case by case basis, with the involvement of a legal counsel. However, if you run a business and use Tresoirt for business purposes, and you, your partners or employees are located in the EU, it is very likely that you are subject to the GDPR.
How to execute a DPA with Tresorit?
You need to be a Subscription Owner to be able to access billing details and initiate the DPA-signing process. This guide shall walk you through all the steps of the process.
The materials available on this website are for informational purposes only and do not constitute legal advice. To obtain advice with respect to a particular issue, you should contact your attorney.
About the author
Petra is a legal counsel specialized in the areas of data protection and IP law. She helps Tresorit to implement legal guarantees to ensure the GDPR compliance of our company and customers.