[Gnso-epdp-team] Recommendation 13 - Responsibilities of the Parties - email list discussion
Diane.Plaut at corsearch.com
Sat Jan 26 10:53:06 UTC 2019
The change still provides flexibility by the verbiage “data protection agreements.”
General Counsel and Privacy Officer
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From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> on behalf of Chris Disspain <chris at disspain.uk>
Date: Saturday, January 26, 2019 at 7:15 AM
To: Kurt Pritz <kurt at kjpritz.com>
Cc: EPDP <gnso-epdp-team at icann.org>
Subject: Re: [Gnso-epdp-team] Recommendation 13 - Responsibilities of the Parties - email list discussion
Apologies for taking a couple of days to respond. I am concerned by:
The EPDP Team recommends that ICANN Org negotiates and enters into required data protection agreements such as a Data Processing Agreement (GDPR Art. 28) or Joint Controller Agreement (Art. 26), as appropriate, with the Contracted Parties.
I thought we had discussed this and agreed a way forward. I don’t understand why we would strike the reference to a Data Processing Agt and leave the reference to a Joint Controller Agt. I thought we had agreed that we needed flexibility.
On 23 Jan 2019, at 15:22, Kurt Pritz <kurt at kjpritz.com<mailto:kurt at kjpritz.com>> wrote:
With the goal of progressing on issues via email, the leadership team has considered the discussion provided during the Toronto meeting and suggests the following compromise language to address the different positions expressed. (This is a resend of an earlier email with only the subject line of the email updated.)
The language below is the same language proposed by the small team that reviewed the comments, but modified:
* as suggested by Diane during the meeting to reflect that GDPR Art 28 is unlikely to apply in this situation, and
* by an addition (bracketed & bolded below) to reference the analysis in the Final Report that this team recommends the creation of Joint Controller Agreements, to appropriately influence the negotiation of GDPR-compliant agreements.
This language is intended to strike a balance between those preferring to leave some flexibility for ICANN Org and Contracted Parties to consider the appropriate agreements and those preferring to be specific about the type of agreement to be pursued.
I understand this is a complex topic that might require additional discussion but it is also possible that we cannot be dispositive on this issue prior to a lengthy contract formation discussion that extends well beyond our time frames. For that reason, we are taking the liberty of making this recommendation and hope you accept it in the spirit it is offered.
Proposed Recommendation #13 Language
The EPDP Team recommends that ICANN Org negotiates and enters into required data protection agreements such as a Data Processing Agreement (GDPR Art. 28) or Joint Controller Agreement (Art. 26), as appropriate, with the Contracted Parties. In addition to the legally required components of such agreement, the agreement shall specify the responsibilities of the respective parties for the processing activities as described therein. Indemnification clauses shall ensure that the risk for certain data processing is borne by either one or multiple parties that determine the purpose and means of the processing. [Due consideration should be given to the analysis carried out by the EPDP Team in its Final Report.]
Please indicate on the mailing list whether you have any concerns about these modifications and/or what other aspects of this recommendation should be discussed.
Deadline: Monday, 28 January, additional email discussion might follow depending on responses.
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