Privacy Guidelines on Data Processor and Data Controller
Guidelines 07/2020 on the concepts of controller and processor in the GDPR
Paragraph 2.1.4 “Purposes and means”
30. The fourth building block of the controller definition refers to the object of the controller’s influence, namely the “purposes andmeans” of the processing. It represents the substantive part of the controller concept: what a party should determine in order to qualify as controller.
31. Dictionaries define “purpose” as “an anticipated outcome that is intended or that guides your planned actions” and “means” as “how a result is obtained or an end is achieved”.
32. The GDPR establishes that data must be collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Determination of the “purposes” of the processing and the “means” to achieve them is therefore particularly important.
33. Determining the purposes and the means amounts to deciding respectively the “why” and the “how” of the processing: given a particular processing operation, the controller is the actor who has determined why the processing is taking place (i.e., “to what end”; or “what for”) and how this objective shall be reached (i.e. which means shall be employed to attain the objective). A natural or legal person who exerts such influence over the processing of personal data, thereby participates in the determination of the purposes and means of that processing in accordance with the definitionin Article 4 (7) GDPR.
34. The controller must decide on both purpose and means of the processing as described below. As a result, the controller can not settle with only determining the purpose. It must also make decisions about the means of the processing. Conversely, the party acting as processor can never determine the purpose of the processing.
35. In practice, if a controller engages a processor to carry out the processing on its behalf, it often means that the processor shall be able to make certain decisions of its own on how to carry out the processing. The EDPB recognizes that some margin of manoeuvre may exist for the processor also to be able to make some decisions in relation to the processing. In this perspective, there is a need to provide guidance about which level of influence on the “why” and the “how” should entail the qualification of an entity as a controller and to what extent a processor may make decisions of its own.
36. When one entity clearly determines purposes and means, entrusting another entity with processing activities that amount to the execution of its detailed instructions, the situation is straightforward, and there is no doubt that the second entity should be regarded as a processor, where as the first entity is the controller.
Essential vs. non-essential means
37. The question is where to draw the line between decisions that are reserved to the controller and decisions that can be left to the discretion of the processor. Decisions on the purpose of the processing are clearly always for the controller to make.
38. As regards the determination of means, a distinction can be made between essential and non-essential means. “Essential means” are closely linked to the purpose and the scope of the processing and are traditionally and inherently reserved to the controller. Examples of essential means are the type of personal data which are processed (“which data shall be processed?”), the duration of the processing (“for how long shall they be processed?”), the categories of recipients (“who shall have access to them?”) and the categories of data subjects (“whose personal data are being processed?”). “Non-essential means” concern more practical aspects of implementation, such as the choice for a particular type of hard- or software or the detailed security measures which may be left to the processor to decide on.
Example: Payroll administration
Employer A hires another company to administer the payment of salaries to its employees. Employer A gives clear instructions on who to pay, what amounts, by what date, by which bank, how long the data shall be stored, what data should be disclosed to the tax authority etc. In this case, the processing of data is carried out for Company A’s purpose to pay salaries to its employees and th payroll administrator may not use the data for any purpose of its own. The way in which the payroll administrator should carry out the processing is in essence clearly and tightly defined. Nevertheless, the payroll administrator may decide on certain detailed matters around the processing such as which software to use, how to distribute access within its own organisation etc. This does not alter its role as processor as long as the administrator does not go against or beyond the instructions given by Company A.
Example: Bank payments
As part of the instructions from Employer A, the payroll administration transmits information to Bank B so that they can carry out the actual payment to the employees of Employer A. This activity includes processing of personal data by Bank B which it carries out for the purpose of performing banking activity. Within this activity, the bank decides independently from Employer A on which data that have to be processed to provide the service, for how long the data must be stored etc. Employer A can not have any influence on the purpose and means of Bank B’s processing of data. Bank B is therefore to be seen as a controller for this processing and the transmission of personal data from the payroll administration is to be regarded as a disclosure of information between two controllers, from Employer A to Bank B.
Employer A also hires Accounting firm C to carry out audits of their bookkeeping and therefore transfers data about financial transactions (including personal data) to C. Accounting firm C processes these data without detailed instructions from A. Accounting firm C decides itself, in accordance with legal provisions regulating the tasks of the auditing activities carried out by C, that the data it collects will only be processed for the purpose of auditing A and it determines what data it needs to have, which categories of persons that need to be registered, how long the data shall be kept and what technical means to use. Under these circumstances, Accounting firm C is to be regarded as a controller of its own when performing its auditing services for A. However, this assessment may be different depending on the level of instructions from A. In a situation where the law does not lay down specific obligations for the accounting firm and the client company provides very detailed instructions on the processing, the accounting firm would indeed be acting as a processor. A distinction could be made between a situation where the processing is – in accordance with the laws regulating this profession – done as part of the accounting firm’s core activity and where the processing is a more limited, ancillary task that is carried out as part of the client company’s activity.
Example: Hosting services
Employer A hires hosting service H to store encrypted data on H’s servers. The hosting service H does not determine whether the data it hosts are personal data nor does it process data in anyother way than storing it on its servers. As storage is one example of a personal data processing activity, the hosting service H is processing personal data on employer A’s behalf and is therefore aprocessor. Employer A must provide the necessary instructions to H on, for example, which technical and organisational security measures are required and a data processing agreement according to Article 28 must be concluded. H must assist A in ensuring that the necessary security measures are taken and notify it in case of any personal data breach.
39. Even though decisions on non-essential means can be left to the processor, the controller must still stipulate certain elements in the processor agreement, such as – in relation to the security requirement, e.g. an instruction to take all measures required pursuant to Article 32 of the GDPR. The agreement must also state that the processor shall assist the controller in ensuring compliance with, for example, Article 32. In any event, the controller remains responsible for the implementation of appropriate technical and organisational measures to ensure and be able to demonstrate that the processing is performed in accordance with the Regulation (Article 24). In doing so, the controller must take into account the nature, scope, context and purposes of the processing as well as the risks for rights and freedoms of natural persons. For this reason, the controller must be fully informed about the means that are used so that it can take an informed decision in this regard. In order for the controller to be able to demonstrate the lawfulness of the processing, it is advisable to document at the minimum necessary technical and organisational measures in the contractor other legally binding instrument between the controller and the processor.