A DPA (Data Processing Agreement) is a legal contract between a data controller (who decides how personal data is processed) and a data processor (who processes the data according to those instructions while implementing compliance measures).
By having a solid DPA, people can achieve peace of mind, knowing that they are not engaging in any potentially risky activities whenever data is processed. Getting a DPA review can help to confirm that a DPA is legally sound and favorable for both parties.
Read the rest of this article to learn more about DPA reviews and when to consult with a lawyer for assistance.
What are the Benefits of a DPA Review?
A DPA review can assist you in various ways, such as the following.
- It prevents fines and penalties from not following regulatory requirements.
- It ensures that companies protect personal information.
- It outlines both parties’ roles and duties.
- It reduces the risk of non-compliance or other violations.
- It minimizes both parties’ liability, such as if there is a data breach.
What’s Included in a DPA Review?
A DPA usually includes these key aspects:
- Signing parties. The contract must clearly define who the parties are.
- Scope. This section needs to define the type of data and reasons for it being processed, so there is no confusion.
- Security. Measures to protect personal data need to be included.
- Restrictions. The contract should state if there are any requirements for data transfers, such as if data is transferred internationally.
- Data deletion. It’s important for parties to know the duration of data storage and what happens after the data processing is complete, such as if data will be deleted.
- Liability. Whichever party is responsible for issues, such as breaches, need to be stated.
- Sub-processors. If sub-processors will be hired to process data, they must agree with terms outlined in the DPA.
- Audits. The data controller should be able to audit the processor’s compliance.
What Should You Look for in a DPA Review?
When conducting a DPA review, it’s essential to check for specific terms and information. Here are some of the most important things you should review.
- Check the core aspects. The scope, duration, and processing types need to be checked so that you’re happy with everything that’s stated.
- Look for data information. What type of data is going to be collected and handled? You’ll want clarity on these processes to prevent issues in the future.
- Ensure good termination terms. If one party needs to terminate the contract, the DPA needs to explain how this can safely occur. For example, deleting data upon termination might be recommended.
- Be specific on data protection. It’s essential to specify how the data will be protected, such as with encryption or regular testing of systems to ensure it’s secure.
Extra Tips for Controllers
- You should check that the DPA provides clarity about how the processor will be using the data.
- Think about any consequences of international data transfers so that regulations are properly considered and maintained.
- Check that the agreement is clear about limiting the processor to instructions/processes you’ve approved.
Extra Tips for Processors
- As a processor in the agreement, you should understand your rights. You’ll be processing data for the controller, so make sure that you’re happy with all rules and duties, as outlined in the DPA.
- Check for clearly-stated data retention and deletion measures, as these will be your responsibility.
- Check the agreement for data privacy law compliance. If you’re going to be hiring a sub-processor, it’s your duty to ensure they are approved by the controller.
How Should You Negotiate a DPA?
It’s common for parties to want to negotiate their DPA, and this document is meant to be specific to your working relationship and processes. Here are some tips to help you negotiate with the other party.
Identify What’s Negotiable and What Isn’t
You should understand what is negotiable and what isn’t for your company, such as in terms of security and compliance. This will ensure you can edit the DPA so that it reflects these crucial elements.
Be Clear in Your Communication
If you wish to negotiate DPA terms with the other party, you should communicate with them in a clear way. Avoid vague statements or legal jargon that can result in misinterpretation, and even disputes in the future.
Find Common Ground
Try to find mutual benefits with the other party so that you can agree on the terms and find a favorable outcome for both of you. A bit of compromise might be required, provided they are in line with your negotiables and non-negotiables.
How Can a Lawyer Help You Review a DPA?
When reviewing your DPA, it’s advisable to consult with a lawyer who will ensure they provide a thorough assessment of it, especially because these documents can be technical and complex.
Here are some ways in which a lawyer will help you:
- They will use their legal expertise to ensure that the DPA is legally enforceable.
- They will check for mandatory clauses, such as in terms of audits and security measures.
- They will ensure that the DPA is aligned with your business operations.
- They will make revisions to the DPA if required, and can negotiate the contract on your behalf.
- They will search the DPA for vague or confusing language that can cause misinterpretations.
Do you need to hire a lawyer with a DPA review?
If you want to consult with a professional, experienced lawyer for a review of your DPA, you should contact a lawyer on ContractsCounsel, an online legal network connecting clients with lawyers vetted on the platform.
To request a document review, go ahead and post your project on ContractsCounsel for free. Include details about what you need and you’ll receive bids from lawyers interested in assisting you. You’ll be able to review the lawyers’ profiles for information about their credentials, experience, and fields of expertise, to help you find the best one for your document review needs.
