A data processing agreement is a contract between a controller, the organisation that decides why personal data is processed, and a processor, the organisation that processes it on the controller's behalf. If you send email or SMS to people in the European Union through a provider, that provider is your processor, and the agreement is not a formality you can skip.
This page describes what Article 28 of Regulation (EU) 2016/679 requires, quoting the Official Journal text. It is not legal advice, and it does not describe any particular provider's terms.
Why is one required?
Because the Regulation says the relationship has to be governed by a contract, and then says what the contract must say:
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.
Before that, there is a duty on you in choosing the provider at all:
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.
So the obligation is twofold: pick a provider that can meet the standard, and put the relationship in writing with the required terms.
What must the contract contain?
Eight stipulations. In the Regulation's words, the contract shall stipulate 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
(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.
Clause (a) is the load-bearing one. "Only on documented instructions" is what makes the provider a processor rather than a controller in its own right, and it is why a provider using your recipient data for its own purposes would be outside the arrangement entirely.
Clause (g) is the one to read before you need it. Deletion or return at the end of the service is at your choice, and the practical value of that clause is that it exists before the relationship ends rather than being negotiated during an exit.
What about the provider's own suppliers?
They inherit the same terms, and the liability stays where it started.
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.
and
Where a processor engages another processor ... the same data protection obligations as set out in the contract ... shall be imposed on that other processor ... 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.
Two things follow. A provider using general authorisation owes you notice of new sub-processors and a chance to object, which is why a published sub-processor list with a change notification is the normal shape. And delegation does not dilute responsibility: your provider stays fully liable to you for what its own suppliers do.
Is a certification enough on its own?
No. It is evidence, not a substitute:
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.
"An element by which to demonstrate" is the operative phrase. A certification helps you show you chose a provider with sufficient guarantees. It does not replace the contract, and the contract still has to contain the eight clauses.
The Regulation also allows the contract to be built on standard contractual clauses laid down by the Commission or adopted by a supervisory authority, in whole or in part, which is why most providers' agreements read similarly.
What should I actually check?
Three things a reader can verify without a lawyer.
- That an agreement exists and is in force for your account, rather than being available on request.
- Where the sub-processor list is published, and how changes are announced, since clause (d) and paragraph 2 give you a right to object that you cannot exercise without notice.
- Where the data is stored and processed, because clause (a) treats transfers to a third country as something that has to be on your documented instructions. That is a residency question, and what is data residency covers how it is decided on Bird.