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Are you a sub-contractor that could be classified as being a ‘data controller’ under the GDPR?

June 2018 - Issue 106

We are all well aware that the EU General Data Protection Regulation (GDPR) became effective on 25 May 2018. The GDPR is the largest change to UK data protection law in 20 years, granting fundamental rights to individuals on how their personal data is processed and can lead to considerable fines for breaches of the new regulations.

The GDPR applies to both data controllers and data processors. A data controller determines the purpose for processing the personal data and a data processors role is to process the personal data on behalf of a controller. It is crucial for an organisation to establish whether they are acting as a data controller or data processor in order to determine which organisation takes responsibility in the event of a data breach.

If an organisation provides a service to another organisation, this does not automatically mean the organisation providing the service is acting as a data processor. The service provider may actually be a data controller itself, depending on the level of control it has over the processing operation.

Consequently, in a construction context, when a contractor contracts its work out to a sub-contractor, the contractor will not always be the only data controller just because they instructed the sub-contractor. The sub-contractor will also hold responsibility in how it handles personal data if it is granted the freedom to use the information and its expertise to make decisions to complete the sub-contracted tasks.

In light of this, it is essential to ensure your sub-contractor terms are drafted adequately to ensure your position is protected and it is clear whether a sub-contractor will also be a data controller. If you would like assistance with ensuring your sub-contractor terms are GDPR compliant, please contact Prettys on 01473 298274 or email  rpalmer@prettys.co.uk.

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