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Should I Take Legal Advice on a Data Sub-Processing Agreement?

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The UK General Data Protection Regulation (UK GDPR) sets out various rules around the processing of personal data. When a data processor brings on board an additional sub-processor to manage specific personal data on behalf of a data controller, several restrictions and rules come into play. Notably, the involved parties must enter a sub-processing agreement outlining the obligations of the data sub-processor in safeguarding the controller’s data. In practice, navigating the various issues around sub-processing contracts can be difficult. This article explores whether seeking legal advice is advisable for processors entering a sub-processing agreement.  

When is a Sub-Processing Agreement Needed?

Understanding the roles of data controllers and processors within the UK GDPR framework is fundamental to understanding each party’s legal responsibilities. 

Data controllers decide how and why personal data is processed, while processors handle the data on their behalf.

A ‘sub-processor‘ is a third party that a processor enlists to support the specific processing of personal data. For instance, a processor might use a hosting service provider to host specific personal data belonging to a controller, with them consequently becoming part of the data processing chain. 

Various rules must apply when a processor uses another subprocessor to process a controller’s data. One such rule is to enter a contractual agreement to ensure that the controller’s data receives equivalent protection from the subprocessor. 

Drafting sub-processing agreements needs meticulous attention to detail to accurately capture the nuances of the data processing arrangement and mitigate risks for the processor. These agreements serve as critical safeguards to uphold compliance and protect all parties involved in the data processing project. 

Seeking legal advice on a data sub-processing agreement is highly valuable for processors operating within the UK. Let us explore some of the key reasons below.

A Solicitor Can Provide Niche Advice 

Sub-processing agreements can be very niche and require careful thought. For example, it can be difficult in practice to’ flow down’ obligations between a controller and processor to a sub-processor. Sub-processors (huge companies) may have terms for processors to sign, which may not be negotiable.  

A solicitor specialising in data protection law can provide invaluable guidance on whether such a sub-processing agreement is necessary and appropriate for the specific relationship and data processing activities. Given the complexity and nuances of these agreements, which often differ from standard data processing contracts, having legal expertise can help ensure that the agreement accurately reflects the obligations and responsibilities of all parties. Further, a solicitor will help ensure your agreement is current with any mandatory legal requirements. 

A data sub-processing agreement requires careful consideration of various legal aspects, including data protection compliance issues and commercial and liability concerns. A data protection solicitor can advise on the essential protections to protect the processor from risk. For instance, a processor will be responsible for any actions of its sub-processors. As such, you will benefit from tailored advice on protecting yourself from risk when engaging a sub-processor. 

A solicitor can also ensure that third-party sub-processing contracts are fair and reasonable, advising you on the key risks to note before signing them.

A Solicitor Can Help Negotiate Sub-Processing Agreements 

Negotiating sub-processing agreements can be challenging, given the niche issues that often arise. A solicitor can help negotiate the contract terms with the sub-processor on behalf of the processor. 

Their support can include negotiating complex liability provisions, indemnification clauses, and any other challenging terms to reach an agreed position for all parties involved. By engaging legal advice, processors can mitigate risks, protect their interests, and ensure compliance with regulatory requirements.

A Solicitor Can Advise on Wider Issues 

Various rules apply under the UK GDPR when a processor engages a subprocessor. In addition to entering a well-drafted subprocessing agreement, a processor must follow other rules, such as conducting due diligence on the subprocessor and mitigating potential risks. 

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A solicitor can help your business understand its broader obligations in addition to advising and negotiating a sub-processing agreement on your behalf. This can be particularly important when a sub-processing relationship is complex. For instance, where the sub-processor will process sensitive or special category personal data or where they are outside of the United Kingdom. In such cases, various additional and complex rules may apply. 

In summary, whilst legal advice is not strictly mandatory, consulting an experienced lawyer for a data-sub-processing agreement can be very beneficial. A lawyer can ensure you understand your obligations and risks, help mitigate those risks, and enter into a contract which is both compliant and protects your business as a processor. 

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Key Takeaways

Navigating the complexities of a data sub-processing agreement requires careful consideration and understanding of complex legal rules. While seeking legal advice is not mandatory, it may be crucial for processors aiming to prevent risk, comply with regulatory requirements, and foster transparent data processing relationships. 

With sound legal advice, processors can confidently navigate the complexities of sub-processing agreements. Investing in expert legal advice allows processors to mitigate risks effectively, ensure they can contractually protect a controller’s data, and demonstrate compliance with UK GDPR rules. 

If you need advice on a data sub-processing agreement, contact LegalVision’s experienced IT lawyers 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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Sej Lamba

Sej Lamba

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