Data Processor agreements for web developers

23rd May 2018
Data Processor agreements for web developers

The GDPR comes into force on Friday - and from then on, many web designers and developers will need a Data Processor agreement in place with their clients.

Updated: 25th May 2018

Initially I thought we wouldn't be classed as "processors" - you make a website, you hand it over, job done. And that is right. But in reality, how often is that really "job done"? One of the joys of our industry is repeat work - no website is ever complete so if you do a good job the client may well come back for more in the future. And when they do, if you can access any data stored on their hosting, then you're a processor. If you do anything for them - like help them send an email from MailChimp - you're a processor. And if you resell hosting, then you are most definately a processor.

The GDPR brings with it obligations - and potential fines - for processors, so you need to know the rules and stick to them. It's Article 28 of the GDPR that particularly talks about these obligations, which is cited below with my take on things. I'm not a legal expert so my comments below are for entertainment purposes only and you should seek professional legal advice about how this effects your business, but you most probably do need to do or consider something!

Article 28:

 1. Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject.

So you need to promise you'll be careful and only do good.

2. The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes.

If you use a 3rd party on behalf of your client, your client needs to know about that. No more white labelling hosting companies without naming them. Think of everyone you work with and pass on to your client and list them in your processor agreement.

3. Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor:

This is the bit that says you need a contract, and that it needs to include things like:

Subject-matter of processing (Probably website related user data)

Duration of the processing (Whilst you're working for them and for a few years after)

Nature and purpose of the processing (Kinda whatever the client asks you for really)

Type of Personal Data (Get listing... names, emails, IP addresses - yup they count, addresses, DOB. Try and avoid handling data from the Special Categories because you need to be extra careful with that.)

Categories of Data Subjects (I think this means "Visitors to the client's website")

Specific processing instructions (Might not be any, or just what the client has asked you to do - which you want to keep general / open - you don't want to have to start a new contract everytime you do a new piece of work for them!)

(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;

So, only do what you're told, but as above, keep that general in the contract so you can go about your business with your client under this contract.

b) ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

Pass that NDA around the office...

(c) takes all measures required pursuant to Article 32 [TOMs];

That's the bit that's all about security and how you'll look after data.

(d) respects the conditions referred to in paragraphs 2 and 4 for engaging another processor;

Just read 2 above and 4 below.

(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;

Chapter III is all about a user's rights - right to be informed, right to access, right to rectification, right to erasure, right to restrict processing, right to data portability, right to object, rights in relation to automated decision making and profiling.

(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;

Again, all about the security of things and reporting data breeches. (Article 32, 33, 34, 35, and 36.)

(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;

Self-explanatory.

(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.

Self-explanatory... but I've seen processor agreements which clarify costs will need to be covered by the client.

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.

So, flag up where you think your client (the Controller) is being naughty.

4. Where a processor engages another processor for carrying out specific processing activities on behalf of the controller, the same data protection obligations as set out in the contract or other legal act between the controller and the processor as referred to in paragraph 3 shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Regulation. Where that other processor fails to fulfil its data protection obligations, the initial processor shall remain fully liable to the controller for the performance of that other processor's obligations.

This is the "eugh" one... you're responsible for any 3rd party you serve to your client. So no more signing them up for a WordFence account because then it's on you if something were to go wrong (not that it would, just an example because someone in our office went to open an account for a client today and then stopped because we didn't want to have to re-issue the processor agreement we've already sent the client listing everyone we act as a go between to for them). Only use tried and tested suppliers, or where possible get the client to sign up directly - so then the contract is between your client and the supplier, not you, and you don't need to update your agreement.

5. Adherence of a processor to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate sufficient guarantees as referred to in paragraphs 1 and 4 of this Article.

I don't know if there are any yet but there could well be soon. (Article 40.)

Then there's some stuff about the form of the contract:

6. Without prejudice to an individual contract between the controller and the processor, the contract or the other legal act referred to in paragraphs 3 and 4 of this Article may be based, in whole or in part, on standard contractual clauses referred to in paragraphs 7 and 8 of this Article, including when they are part of a certification granted to the controller or processor pursuant to Articles 42 and 43.

7. The Commission may lay down standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the examination procedure referred to in Article 93(2).

8. A supervisory authority may adopt standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the consistency mechanism referred to in Article 63.

9. The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form.

10. Without prejudice to Articles 82, 83 and 84, if a processor infringes this Regulation by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing.

One final big one - make sure you don't accidentally become a Controller! If you're working for a client, you want to remain a Data Processor as there's not so much liability there as if you become a Controller. A Controller chooses what data is collected and how it's used so the buck stops there. We've sought legal advice on whether this means we need to get database schematics and every table row signed off by the client and we were told we don't - as long as we're acting inline with instructions, we're OK. So even if the client isn't explicitly told that inorder to achieve what they're asking for we need to collect an IP address, if it's fulfilling what they asked for then we're still acting as a Processor and they're the Controller. But, we still think you should tell the Controller what you're collecting - especially as they'll then need to update their privacy policy and potentially update their users - but the point is you're still the Processor, not the Controller as long as you're acting under instruction.

As soon though as you go off piste - as soon as you start collecting or processing data that you weren't asked to - so extra stats that you think might come in useful one day - you've become a Controller. And it's probably best you just don't go there. We've been talking in the office about how logging effects this, as you might need to log a lot of stuff as part of your debugging / error handling so I think that's still part of the job set by the client, but as a failsafe you might want to try and remember to tell the client from now on about any logging you've added in order to test / support the work you've done.

If you haven't sorted out a Processor Agreement - which could well be a bit unique for every client - you need to get your skates on as it should be in place by the 25th May 2018. You may decide you need to send them something and say "if you don't reply we'll take it that you've agreed" because otherwise, in the case of hosting, I guess you'd need to turn their site off! And no one wants that headache / angry phone call! But if you can get them to opt in, and save the date of their consent and the name of who consented, then all the better.

 

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