IAPP Updated CIPP-E Exam Questions and Answers by ariah

According to the CIPP/E study guide, Article 56 of the GDPR establishes the concept of the lead supervisory authority, which is the supervisory authority of the main or single establishment of the data controller or processor in the EU1. The lead supervisory authority has the primary responsibility for dealing with cross-border data processing, in cooperation with other concerned supervisory authorities1. Article 60 of the GDPR requires the lead supervisory authority to cooperate with the other supervisory authorities concerned in an endeavour to reach consensus2. The other supervisory authorities concerned are those that are established in a Member State where the data controller or processor has an establishment or where data subjects are substantially affected or likely to be substantially affected by the processing2. In the scenario, T-Craze is a German-headquartered company that has a French affiliate responsible for all marketing and sales activities. Therefore, the French supervisory authority is the lead supervisory authority for the processing of personal data related to the marketing and sales activities of T-Craze, as it is the supervisory authority of the main establishment of the data controller in the EU. The Spanish supervisory authority is a concerned supervisory authority, as it is the supervisory authority of the Member State where data subjects are likely to be substantially affected by the processing, such as Sofia who filed a complaint. Therefore, the Spanish supervisory authority notifies the French supervisory authority when it opens an investigation into T-Craze based on Sofia’s complaint, in order to cooperate with the lead supervisory authority and seek consensus on the action to be taken2. References: 1: CIPP/E study guide, page 87; Art. 56 GDPR; Guidelines 3/2018 on the territorial scope of the GDPR (Article 3)2: CIPP/E study guide, page 88; Art. 60 GDPR; Guidelines 3/2018 on the territorial scope of the GDPR (Article 3).

According to Article 28(2) of the GDPR, the processor may not engage another processor (sub-processor) without the prior specific or general written authorization of the controller. In the case of general written authorization, the processor must 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. Furthermore, Article 28(4) of the GDPR states that 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 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 organizational measures in such a manner that the processing will meet the requirements of the GDPR. Therefore, the processor must ensure that the sub-processor complies with data processing obligations that are equivalent to those that apply to the processor. References:

Article 28 of the GDPR

European Data Protection Law & Practice textbook, Chapter 6: Data Processing Obligations, Section 6.3: Processor Obligations, Subsection 6.3.2: Sub-processors

The GDPR (General Data Protection Regulation) applies to any organisation that processes personal data of EU residents, regardless of where the processing takes place. Therefore, WonderKids, as a data controller based in France, must comply with the GDPR when it transfers personal data to its hosting service provider in Switzerland, which acts as a data processor on behalf of WonderKids.

According to Article 28 of the GDPR, data controllers must only use data processors that provide sufficient guarantees to implement appropriate technical and organisational measures to ensure the protection of the rights of the data subjects and the security of the data. The data controller and the data processor must also enter into a written contract or other legal act that sets out the subject matter, duration, nature, and purpose of the processing, as well as the obligations and rights of the data controller.

The contract must include, among other things, the following provisions:

The data processor must process the personal data only on documented instructions from the data controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by EU or member state law;

The data processor must ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

The data processor must take all measures required pursuant to Article 32 of the GDPR, which relates to the security of the processing;

The data processor must respect the conditions for engaging another processor, and inform the data controller of any intended changes concerning the addition or replacement of other processors, giving the data controller the opportunity to object to such changes;

The data processor must assist the data controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR, which relate to the security of the processing, the notification of personal data breaches, the communication of personal data breaches to data subjects, the data protection impact assessment, and the prior consultation with the supervisory authority;

The data processor must, at the choice of the data controller, delete or return all the personal data to the data controller after the end of the provision of services relating to the processing, and delete existing copies unless EU or member state law requires storage of the personal data;

The data processor must make available to the data controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by the data controller or another auditor mandated by the data controller.

Therefore, among the four options, the one that must be included in the contract between WonderKids and the hosting service provider is the requirement to implement technical and organisational measures to protect the data, as this is part of the data processor’s obligations under Article 28 and Article 32 of the GDPR.

The other options are not mandatory under the GDPR, although they may be advisable or desirable depending on the circumstances. Controller-to-controller model contract clauses are used when personal data is transferred from one data controller to another data controller, not from a data controller to a data processor. Audit rights for the data subjects are not explicitly required by the GDPR, although the data controller must ensure that the data processor allows for and contributes to audits conducted by the data controller or another auditor mandated by the data controller. A non-disclosure agreement may be useful to protect the confidentiality of the personal data, but it is not sufficient to ensure the compliance with the GDPR, as it does not cover all the aspects of the data processing relationship.

References:

GDPR

Web Hosting and GDPR Compliance - What to Look For

The GDPR: Why you need to review your third-party service providers’ security

GDPR Compliance for Third-Party Service Providers: Vendor Management