European Union: Data Protection Day—Data Processors And The GDPR

Last Updated: 9 February 2016
Article by Hazel Grant, Amy Lambert and Kate Pickering

IP & IT analysis: Data Protection Day aims to raise awareness as to how data is used and explores the latest developments in data protection regulation. As part of our Data Protection Day series, Hazel Grant, partner and head of privacy at Fieldfisher, along with senior associates Kate Pickering and Amy Lambert, considers the area of data processors in the private sector in light of the forthcoming EU General Data Protection Regulation (GDPR).

How do the new rules affect data processors?

The GDPR expands the scope of the application of EU data protection law. For the first time, data processors (ie entities who process personal data on behalf of a data controller) will be obliged to comply with particular data protection requirements which previously only applied to data controllers (ie entities who determine why and how personal data are processed).

How does this differ from the current regime?

At present, the Data Protection Directive 95/46/EC (the Data Protection Directive) only imposes statutory obligations on controllers (ie only the controller is held liable for data protection compliance, not the processor).

Processors are generally only subject to obligations that the controller imposes on them by way of contract. For example, in a service provision scenario, the customer (the controller) will flow down data protection responsibilities and obligations to the service provider (the processor) within the service contract, to protect itself against unnecessary data protection compliance risk.

In contrast, the GDPR introduces direct statutory obligations on processors and severe sanctions for compliance failures. This is a significant culture change for processors. These obligations include:

  • accountability—processors must now maintain written records regarding all categories of personal data processing activities carried out on behalf of a controller
  • co-operation and consultation—processors must co-operate, on request, with the supervisory authority in the performance of its tasks. The processor, prior to processing personal data, may need to consult the supervisory authority in certain cases to ensure effective protection of the rights and freedoms of data subjects
  • sub-processors—processors cannot enlist another processor or replace a processor without the authorisation of the controller
  • data security—processors must have appropriate technical and organisational measures to ensure a level of security appropriate to the risk. Processors will need a comprehensive understanding of their systems, the type of data it processes (ie is the data sensitive?) if it engages sub-processors and must implement necessary technical and organisational measures to ensure data integrity and security
  • data breach notifications and data subjects—processors must notify the controller without undue delay upon becoming aware of a data breach. Data subjects will also be able to claim compensation for unlawful processing of their personal information
  • sanctions—non-compliant businesses risk fines of up to 4% of global annual turnover
  • data protection officers (DPOs)—in certain circumstances processors will now have to designate a DPO (eg where the processing is carried out by a public authority, the processing requires regular and systematic monitoring of data subjects on a large scale, or the core activities consist in processing large scale of special categories of personal data)     What impact will these new rules have on businesses?

The liability profile for businesses that act as processors will increase significantly once the GDPR comes into effect. Processors will need to understand their statutory obligations and take the necessary steps to comply. Under the GDPR, processors (such as technology vendors, datacentres and cloud service providers) established in the EU will be subject to direct statutory obligations, rather than just the obligations imposed on them by contract. As such, it is likely we will see harder negotiations between controllers and processors, and more detailed contracts as the parties battle it out to agree their respective proportion of the liability risk. Controllers are also likely to increase the level of due diligence prior to contracting.

What steps should businesses take now?

While there is at least two years before the GDPR comes into force, given the breadth and depth of change in the substantive requirements, this isn't really very long. A lot of fact finding, careful thinking, planning and operational implementation will be required to be GDPR ready in 24 months. Businesses should assess whether any of its EU-based group companies act as processors, as these companies will be captured under the GDPR.

Non-EU companies that act as processors will now also be captured, and will have direct statutory obligations for their activities as processors, if they undertake processing activities which are related to:

  • the offering of goods or services to data subjects within the EU
  • monitoring the behavior of European data subjects—as far as their behaviour takes place within the EU

If either of these scenarios apply you should assess the level of awareness of and readiness for compliance with EU data protection law and create a road map for transitioning to compliance with the GDPR. If you are a multinational business with EU and non-EU affiliates which will (or may) be caught by the GDPR, you will also need to consider intra-group relationships, how you position your group companies and how you structure your intra¬group data transfers.

Finally, businesses will have to comply with new documentation requirements. Smart businesses should start preparing their data breach processes and auditing their data processing activities and their lists of sub-processors now to ensure that they can adequately document their activities before the GDPR bites.

This article was first published by LexisNexis on 27 January 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.