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Article 28

Processor

Chapter 4 | Controller and Processor | 📖 8 min read

1. Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject.

2. The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall 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.

3. Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor:

(a) processes the personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

(b) ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

(c) takes all measures required pursuant to Article 32;

(d) respects the conditions referred to in paragraphs 2 and 4 for engaging another processor;

(e) taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III;

(f) assists the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 taking into account the nature of processing and the information available to the processor;

(g) at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data;

(h) makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.

4. 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 as referred to in paragraph 3 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 organisational measures in such a manner that the processing will meet the requirements of this Regulation. Where that other processor fails to fulfil its data protection obligations, the initial processor shall remain fully liable to the controller for the performance of that other processor's obligations.

5. Adherence of a processor to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate sufficient guarantees as referred to in paragraphs 1 and 4 of this Article.

6. Without prejudice to an individual contract between the controller and the processor, the contract or the other legal act referred to in paragraphs 3 and 4 of this Article may be based, in whole or in part, on standard contractual clauses as referred to in paragraphs 7 and 8 of this Article, including when they are part of a certification granted to the controller or processor pursuant to Articles 42 and 43.

7. The Commission may lay down standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the examination procedure referred to in Article 93(2).

8. A supervisory authority may adopt standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the consistency mechanism referred to in Article 63.

9. The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form.

10. Without prejudice to Articles 82, 83 and 84, if a processor infringes this Regulation by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing.

Understanding This Article

Article 28 is one of the most important and practical GDPR provisions, governing the controller-processor relationship. It transforms processor obligations from informal arrangements into strict legal requirements.

Paragraph 1 - Processor Selection:

Controllers must conduct due diligence before engaging processors. They must ensure processors provide 'sufficient guarantees' of appropriate technical and organizational measures. This means vetting processor security, data protection practices, and compliance capabilities.

Paragraph 2 - Sub-Processor Authorization:

Processors cannot unilaterally hire sub-processors. They need:

  • Specific authorization: Controller approves each sub-processor individually, OR
  • General authorization: Controller gives blanket approval but processor must notify of changes, giving controller opportunity to object

Paragraph 3 - Mandatory Contract Terms:

The contract/legal act must specify:

  • Subject-matter and duration
  • Nature and purpose of processing
  • Type of personal data and categories of data subjects
  • Controller and processor obligations and rights

Plus eight mandatory clauses (a-h):

  1. (a) Process only on instructions: Documented instructions, including for transfers; notify controller if legally required to process without instructions
  2. (b) Confidentiality: Ensure staff have confidentiality commitments
  3. (c) Security measures: Implement Article 32 security requirements
  4. (d) Sub-processor rules: Follow sub-processor requirements
  5. (e) Assist with data subject rights: Help controller fulfill Chapter III rights requests
  6. (f) Assist with compliance: Help with security, breach notification, DPIAs
  7. (g) Delete or return data: After service ends, delete or return data (unless law requires retention)
  8. (h) Audit rights: Allow controller audits and inspections

Paragraph 4 - Sub-Processor Chain:

Same obligations flow down to sub-processors. Initial processor remains fully liable for sub-processor failures.

Paragraphs 5-8 - Standard Clauses:

Compliance can be demonstrated via codes of conduct, certifications, or standard contractual clauses adopted by Commission or supervisory authorities.

Paragraph 9 - Written Form:

Contract must be in writing (including electronic).

Paragraph 10 - Processor Becoming Controller:

If processor determines purposes and means (goes beyond instructions), they become a controller for that processing and assume full controller responsibilities.

Key Points

  • Controllers must only use processors with sufficient security guarantees
  • Must be governed by written contract or legal act (Data Processing Agreement)
  • Processor can only process on documented controller instructions
  • Eight mandatory contract clauses including security, confidentiality, assistance with rights, audit rights
  • Sub-processors require controller authorization (specific or general)
  • Processor liable for sub-processor failures
  • Processor determining purposes/means becomes a controller for that processing

Practical Application

Common Processor Relationships:

  • Cloud hosting providers (AWS, Azure, Google Cloud)
  • Email marketing platforms (Mailchimp, SendGrid)
  • Payroll service providers
  • Customer support platforms (Zendesk, Intercom)
  • Analytics providers (following instructions)
  • IT service providers
  • Document shredding services

Data Processing Agreement (DPA) Checklist:

  1. Header Information:
    • Parties (controller and processor names)
    • Effective date
    • Reference to main service agreement
  2. Processing Details:
    • Subject-matter (what service)
    • Duration (term of processing)
    • Nature and purpose (why processing)
    • Types of personal data (list categories)
    • Categories of data subjects (customers, employees, etc.)
  3. Eight Mandatory Clauses:
    • Process only on documented instructions
    • Confidentiality obligations
    • Security measures (reference to Article 32)
    • Sub-processor terms
    • Assistance with data subject rights
    • Assistance with security and compliance
    • Deletion or return of data
    • Audit rights
  4. Sub-Processors:
    • Authorization type (specific or general)
    • If general: notification procedure, objection rights
    • List of current sub-processors
    • Flow-down of obligations
  5. International Transfers:
    • Whether processor will transfer outside EEA
    • Transfer mechanisms (SCCs, adequacy, etc.)
  6. Liability and Indemnity:
    • Processor liability for breaches
    • Indemnification provisions
  7. Term and Termination:
    • Duration
    • Data deletion/return procedure
    • Certification of deletion

Example Sub-Processor Clause (General Authorization):

"Processor may engage sub-processors with general written authorization from Controller. Processor maintains a list of current sub-processors at [URL]. Processor shall notify Controller at least 30 days before adding or replacing sub-processors. Controller may object to changes on reasonable grounds related to data protection. If Controller objects, Processor shall not proceed with sub-processor engagement or shall provide alternative solution."

Red Flags in Processor Selection:

  • Refuses to sign GDPR-compliant DPA
  • Won't specify security measures
  • Claims ownership of customer data
  • Won't commit to deleting data after service ends
  • Refuses audit rights
  • Unclear about sub-processor use
  • No breach notification procedures

When Processor Becomes Controller (Paragraph 10):

  • Example: Email provider contracted to send transactional emails starts using email addresses for its own marketing = processor became controller for marketing purposes
  • Example: Cloud provider supposed to just store data starts analyzing it for AI training = controller for that purpose

Implementation Steps:

  1. Inventory all processors
  2. Conduct due diligence on security and compliance
  3. Negotiate and sign DPAs with all processors
  4. Document instructions given to processors
  5. Review and approve sub-processors
  6. Monitor processor compliance
  7. Conduct periodic audits or review audit reports
  8. Update DPAs as processing changes

Related Recitals

Related Articles in Chapter 4

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