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How to Include GDPR Clauses in Contracts Outside the EU?

Question from Jean, How to Include GDPR Clauses in Contracts Outside the EU?

Answer from AI:

When engaging with hosting service providers located outside the European Union, it’s crucial to ensure that your contracts comply with the General Data Protection Regulation (GDPR). This regulation is designed to protect the privacy and personal data of EU citizens, and it has global implications for companies that process this data, regardless of where they are based. Here’s a general guide on how to include GDPR clauses in your contracts with such providers, focusing on the jurisdiction of France.

Understanding GDPR Requirements

First, it’s important to understand what the GDPR requires from both data controllers (the entity that determines the purposes and means of processing personal data) and data processors (the entity that processes personal data on behalf of the controller). Under GDPR:

  • Data processing must be lawful, fair, and transparent.
  • Data must be collected for specified, explicit, and legitimate purposes.
  • Data processing must be limited to what is necessary in relation to the purposes for which they are processed.
  • Data must be accurate and kept up to date.
  • Data must be kept in a form which permits identification of data subjects for no longer than is necessary.
  • Data must be processed in a manner that ensures its security.

Including GDPR Clauses in Contracts

To comply with GDPR when contracting with hosting service providers outside the EU, consider the following steps:

  1. Identify the Data Protection Roles: Clearly define whether the hosting service provider acts as a data controller or a data processor in relation to the personal data of EU citizens. This distinction will determine the specific obligations under GDPR.
  2. Include Data Processing Terms: The contract must include specific terms regarding the processing of personal data, such as the subject matter and duration of processing, the nature and purpose of processing, the type of personal data and categories of data subjects, and the obligations and rights of the controller.
  3. Ensure Adequate Safeguards: When transferring personal data outside the EU, ensure that the hosting provider offers adequate safeguards for data protection. This may involve mechanisms like Standard Contractual Clauses (SCCs) approved by the European Commission or adherence to an approved certification mechanism like the EU-US Privacy Shield (note: the validity of such frameworks can change, so always check the current legal status).
  4. Include Audit Rights: The contract should grant the data controller the right to conduct audits or inspections to ensure the hosting service provider complies with GDPR.
  5. Address Data Breach Notification: Include clauses that require the hosting provider to notify you promptly in the event of a personal data breach.
  6. Specify Data Return or Deletion: Upon termination of the contract, the hosting provider should be required to return or delete all personal data, unless there is a legal requirement to retain it.

Legal Advice and Resources

It’s important to note that this guide provides a general overview and not legal advice. GDPR compliance can be complex, and the specifics of your contract may require professional legal consultation. Consider consulting with a legal professional who specializes in data protection laws, especially those with expertise in GDPR and international data transfers.

For more information on GDPR and its requirements, you can visit the European Commission’s Data Protection page or the French Data Protection Authority (CNIL) website.

Remember: Including GDPR-compliant clauses in your contracts with hosting service providers outside the EU is not just about legal compliance; it’s also about protecting the privacy and rights of individuals and maintaining the trust of your customers and partners.

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