(Editor note: This post is relative to the Spanish Data Protection Act or LOPD. Although LOPD is based on the 95/46/CE directive it may not be fully applicable to other countries inside the EU, so several sentences have been modified or eliminated.)
It’s been a long time since our last post about the Spanish Data Protection Act or LOPD. As you know, the Spanish Data Protection Act distinguishes between a series of figures, which can be grouped into “internal” and “external”. The first group includes mainly the Responsable de Seguridad (Security Manager) and the Responsable del Tratamiento (or Controller in 95/46/CE). Note that although some functions may be delegated to external companies, it is not possible to delegate responsibility, hence we consider these figures to “internal”.
In the second group, the subject of this post, we find the Encargado del Tratamiento (Processor in 95/46/CE), the Cesionario (approx. Recipient in 95/46/CE) and the service provider without access to personal data. Each of these figures has also specific features besides its own ambiguities. Ok.
- Encargado del Tratamiento or Processor: The LOPD defines the figure in Section 3, g) as “the natural or legal person, public authority, agency or any other body who, alone or jointly with others, processes personal data on behalf of the Responsable del Tratamiento [or Controller]“.To be absolutely clear we must see the definition of “data processing” in paragraph c) of the same article: “technical operations and procedures automated or not, enabling the collection, recording, storage , development, modification, blocking and cancellation, as well as transfers of data resulting from communications, consultations, interconnections and transfers “.
Let´s see some examples. Suppose Company A hires the agency B to do the staff payroll. It is clear that in the process, B will process the data of company A employees “on behalf” of the company A. Therefore, the agency is a processor.
Now the same company hires the company C for the management of their customer support center, which admits internal and external users inquiries. The events reported by the users contain the name of the user and other contact information. Again, it seems clear that C is a processor as they process personal data of “on behalf” of A..
In these cases, it is necessary that company A signs, apart from the corresponding contract services, a personal data access contract as specified in Article 12.2 of the LOPD: “Performing treatments for others should be regulated in a contract […] where expressly establishes that the processor will only process the data in accordance with the instructions of the controller, and the data will not be applied or used for purposes other than that contained in the contract, nor shall, not even for preservation, to others. In the contract there will be stipulated […] the security measures […] that the processor is required to implement.”
Note that since the Responsable del Tramiento or Controller (ie, who ultimately must ensure the security of the data) is the company, neither the agency nor the CAU management company must declare the processing, as it corresponds to “A”.
Let’s move on to the next.
- Service Provider without access to personal data: Although LOPD does not explicitly define this figure (remember that between the LOPD and its regulation RDLOPD there are more than eight years), it is mentioned in the Article 83 of RDLOPD named “Services rendered without access to personal data“. In this case we will find companies which provide services unrelated to personal data but may have sporadic access to such information.Let’s see a couple of cases. This company has hired E, a cleaning company, whose contract is not obviously related to the processing of personal data. However, it is possible that in the performance of their duties, employees of E can see personal data.
Company A has also hired a security company, let’s call such F, who has put a security guard monitoring the company fence perimeter. Again, in his work Philip (that’s the name of the guard) does not manage personal data, but can see people entering and leaving the company.
Now if Philip is given new attributions and becomes responsible of the registration of the staff and visitors that enter and exit the company, the security company becomes a processor, that manages personal data “on behalf” of the company A.
In these cases, the services contract “expressly collect the prohibition of access to personal data and the obligation of secrecy regarding the data that the staff could have known because of the service” (Art. 83 RDLOPD) , although it is usual that such information is contained in a separate confidentiality agreement contract.
Again, also in this case it is A who must declare the processing, not the security company nor the cleaning one.
- Cesionario or Recipient: Finally, we have the recipient (95/46/CE definition of “recipient” may not be exactly the same as the LOPD). The LOPD defines in Article 3.i) the transfer or communication of data as “any disclosure of data to a person other than the person concerned“. However, when this data communication relates to the provision of services is not considered a communication of data, as specified in Article 12.1 of the LOPD: “ shall not be deemed data communication from a third party access to data when such access is necessary for the provision of a service to the controller “. Article 20.1 of RDLOPD adds an important consideration: “However, communication is deemed to exist when the access data is aimed at establishing a new connection between the entity accessing data and the user” .Note that this figure is the one most related to breaches of the LOPD, as often the necessary collaterals for the communication of the data to a third party (generally consent of the user affected) are not met. Put it this way, a recipient is “someone” who wants to establish its “own” processing over the personal data received, and will not always get the legal and necessary consent from the user. Unlike previous cases, since there is a new data processing and a new link between the user and the company receiving the data, it is necessary that the recipient declares the processing.
Let’s see a couple of examples of what is a data communication.
Imagine that Company A provides (sells, trades, sends) data of its employees to a telemarketing company for it’s use for their campaigns. In this case we are talking about a legal data communication if the consent of the employees has been previously requested (and thus company A has provided only the data of those who have given such consent), and illegal if it was not so. Note that this case is different from the case in which agency B decides to use on its own to use the data of the employees of Company A to send them comercial information, as stated in Article 12.4: “In the event that the processor uses the data for other purposes […] in breach of the contract shall be treated also as a controller […]“.
It is also different from the case in which Company A hires telemarketing firm H for a commercial campaign, since in this case H would be a processor and who would incur an illegality would be the company A (unless he gets the consent of the final user). It is common to see this case to try to elude LOPD: a Spanish company hires an Indian company to send commercial information to its customers because LOPD doesn’t apply to the indian company itself. However, LOPD applies as the data processing is done “in the context of the activities of an establishment of the controller” (Article 3.1.a RDLOPD).
Let’s finish with another case. Company A decides to hire a health insurance for their employees with the company J. Since such data processing is not directly related to any services contract between A and J, it is a data communication for which A must request consent of their employees. Moreover, in this case it is clear that a new independent link is created between the employee and the insurance company in which the company A does not intervene, and that can be maintained even when the employment relationship between the employee and the company A is complete.
Obviously, there are many other aspects of these figures noteworthy to mention, but first of all, it is imperative that an organization knows what is a processor, what a recipient and what a service provider without access to personal data, since each one of these figures require a different treatment. Please ask in the comments any doubts you may have.
