Today’s guest post is from Tony Bridger, an experienced provider of Procurement Consulting and Spend Analysis services across the Commonwealth (as well as a Lean Six Sigma Black Belt) who has been delivering value across continents for two decades. He is currently President of UK-based TrainingWorx Ltd, a provider of a wide range of Procurement and Analytic business training programs (inc. GDPR, spend analysis, project management, process improvement, etc.) and focussed short-term consulting solutions. Tony can be contacted at firstname.lastname@example.org.
Marvin Ammori, the US innovation lawyer suggests that:
“one goal of law — as we learn in Law School from the first day of Contracts, is to deter bad behaviour”.
There is some truth in this statement. The GDPR has largely been a response to the failure of legislation to control data privacy issues. The UK Data Protection Act (1998) was deemed, in many respects, to have a series of major shortcomings — as did other EU member state privacy legislation. There was also the issue of Commission wide inconsistency between member states. So, the GDPR was born and ratified quickly by all 27-member states – a miracle in its own right.
So how are contracts likely to be framed?
There has been much dialogue on supervisory body sites around the notion of model clauses. The UK ICO website contains a range of links that have been carefully and studiously followed. The site makes very clear that any model clauses cannot be altered if they are used by organisations.
Eventually, despite searching, it is clear that there are still no model clauses that have been agreed and issued by the EU. The ICO website clearly states:
“The GDPR allows for standard contractual clauses from the EU Commission or a supervisory authority (such as the ICO) to be used in contracts between controllers and processors – though none have been drafted so far.” Source
Implementation of the regulation is history — and yet there is still little guidance for companies on these contracts.
However, the site does provide a broad and wide-ranging series of guidance states for processors (we covered these in the last posting).
The guidance is confusing. However, over the next few posts we will attempt to try and provide some of the core elements that processors, both within and outside of the EU should provision for contractually during this transition period.
Given the impact and wide-ranging nature of the regulations it does tend to communicate that the implementation of the detail of the EU legislation is still underway — but is still literally an unfinished symphony (or cacophony).
However, over we will try and rationalise some next steps while the clauses are drafted. In many respects, most companies can take the available guidance – and create compliant contracts. Like most of the posts — we suggest you take legal advice if you are in doubt.
We did say it wasn’t easy.