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Data processors have a range of obligations under the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018. Understanding your responsibilities as a processor is essential for compliance and maintaining trust with your clients and customers who act as data controllers. This article explores some of your business’s vital obligations as a data processor.
What Are Data Processors?
If you act as a data processor, this means your business processes activities on behalf of data controllers and according to their instructions.
As a processor, you do not determine the purposes or means of processing and have limited or no decision-making authority regarding data processing activities. Typically, you will have contractual agreements with controllers, which outline your roles and responsibilities around using personal data. These obligations can include implementing appropriate security measures and assisting controllers in fulfilling their obligations under data protection laws.
The first step is to determine whether your business is a data processor. If you need support with this, you should seek urgent legal advice.
What are the Key Obligations of a Data Processor?
Following the implementation of the UK GDPR, data processors have a range of unique obligations. This represents a significant shift and means processors are far more accountable than under the previous data protection law regimes.
Processors now have a range of obligations. Here are some of the critical obligations of data processors:
You Must Process Personal Data Only on Documented Instructions
You must process personal data strictly according to the instructions documented by the data controller. This will ensure that the data controller maintains control over your use of their data. Typically, a controller will set out its instructions in a data processing agreement.
You Must Implement Data Security Measures to Safeguard Personal Data
Your business must implement appropriate technical and organisational measures to secure personal data. These measures should protect against unauthorised or unlawful processing and accidental loss, destruction, or damage. For instance, consider encryption, access controls, and regular security audits as part of your security measures.
You Must Always Maintain Confidentiality
Ensuring confidentiality is crucial. Anyone processing data on behalf of a controller, including your employees and contractors, must maintain confidentiality. You should provide regular staff training on data protection principles and include confidentiality clauses in employment contracts and consultancy agreements for staff handling personal data.
You Must Follow Strict Legal Rules Before Engaging Sub-Processors
If you need to engage another processor (i.e. a sub-processor) for specific processing activities, follow the UK GDPR rules. This will involve obtaining prior authorisation from the data controller.
You must also ensure that any sub-processor adheres to the same data protection obligations you have promised the data controller. Your business should also carry out due diligence to check its data protection compliance measures and data security.
You Must Assist the Data Controller
You must assist the data controller in fulfilling their UK GDPR obligations. This includes helping with data protection impact assessments, responding to data subjects’ rights requests, and ensuring compliance with security measures.
You Must Notify Data Breaches
If you become aware of a personal data breach, you must notify the controller without delay (or by the timeframes you have agreed with them). Prompt notification of breaches will allow the data controller to take necessary actions, including notifying the relevant data protection regulator and affected data subjects if required.
You Must Consider the Need to Appoint a Data Protection Officer
Depending on the nature and scope of your processing activities, you might need to appoint a Data Protection Officer (DPO). The DPO will monitor compliance with UK GDPR, provide advice, and act as a point of contact for data subjects and supervisory authorities.
You Must Maintain Documentation and Records
If required by law, you must keep records of all processing activities carried out on behalf of the data controller. These records should include details such as the categories of processing, transfers of data to third countries, and descriptions of technical and organisational security measures you have in place to protect personal data.
You Must Ensure you Enter Mandatory Processing Contracts
You must ensure that your contract with any data controller includes specific clauses required by the UK GDPR. These clauses should set out various details, including the processing activities, the duration of processing, the nature and purpose of processing, the type of personal data, and the obligations and rights of the data controller.
The contract should also cover sub-processing activities, data security, and assistance with compliance obligations. These are vital documents; you should seek legal advice if you need help using or implementing them in your business.
Depending on their processing activities, several other legal obligations may apply to processors. For instance, a processor transferring personal data to certain countries outside the UK must comply with additional rules around international data transfers.
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Why Does Compliance Matter For Processors?
Compliance with UK GDPR is not just a legal requirement but a crucial step in protecting your business from risks. These risks include significant financial penalties, potential legal liability, and reputational damage. Non-compliance can lead to heavy fines from data protection regulators such as the UK ICO, breaches of contracts with data controllers, and direct claims from individuals. Understanding and fulfilling your obligations can mitigate these risks and protect your business.
This factsheet sets out how your business can become GDPR compliant.
Compliance also helps processors develop transparent data handling practices that minimise risks and reduce the damaging impact of personal data breaches. Beyond financial penalties, non-compliance can destroy a processor’s brand image and harm customer trust, leading to negative media coverage and lost business opportunities.
Demonstrating a commitment to UK GDPR compliance through robust data security practices and data privacy policies and procedures will enhance your trustworthiness in data controllers. It also provides a competitive edge as controllers increasingly seek to work with processors with solid data protection standards.
Key Takeaways
As a data processor, your business is entrusted with protecting personal data and ensuring the rights and freedoms of data subjects. Understanding and fulfilling your obligations under the UK GDPR and the Data Protection Act 2018 allows you to avoid legal repercussions and build and maintain client trust. This, in turn, will contribute to a robust data protection culture within your organisation, helping to minimise data protection law risks.
If you need advice on compliance with the UK GDPR as a processor, LegalVision’s experienced data, privacy and IT lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
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