Ireland: Data Protection Commissioner Looks To The Clouds

Last Updated: 17 September 2012
Article by John O'Connor, Yvonne Cunnane and Andreas Carney

The Irish Data Protection Commissioner recently issued guidance in relation to data protection issues to be considered when contracting for cloud computing services. The primary focus of the Commissioner is on the security of data processed in the cloud. The Commissioner references the recently published opinion of the Article 29 Working Party in relation to cloud computing (Opinion 05/2012) which also provides useful guidance on this topic.


Cloud Security

Ultimately responsibility for security of personal data rests with the data controller under Irish data protection legislation. The data controller is obliged to ensure that it meets the security requirements set out in the legislation in the event that responsibility for data processing is outsourced to any service provider, including a cloud provider. 

The guidance from the Commissioner states that security standards of a "very high level" must be in place where personal data is being processed by a cloud provider. As the legislation is drafted in a technology neutral manner, there is no specificity provided in the legislation, or in the Commissioner's guidance, in relation to the type of security measures required to meet this high standard.

In line with the recommendation of the Article 29 Working Party opinion, the guidance recommends that when engaging a cloud service provider assurances must be obtained in relation to issues such maintaining the integrity of the data (including back-up and disaster recovery mechanisms), prevention of unauthorised access to data, adequate oversight of any sub-processors used, procedures in the event of a data breach and the right of the data controller to remove, erase or transfer data.

The Commissioner and the Article 29 Working Party both recognise that auditing a cloud provider may not always be the most practical option for a data controller. The Commissioner advises that where there is a multi-tenanted cloud structure, a third-party certification to approved international standards may be more appropriate than a direct right to audit.

The Article 29 Working Party also advises that, in certain circumstances, individual audits of cloud providers may be impractical and independent verification or certification by a reputable third party can be a credible means for cloud providers to demonstrate compliance with their obligations.


Cloud Location

Transfers of personal data are permitted within the EEA on the basis that personal data processed within the EEA will benefit from the common data protection standards derived from Directive 95/46/EC. However, given the nature of certain cloud services, it is possible that the data will be transferred outside the EEA during the course of the provision of the services.

According to the Commissioner's guidance and Irish data protection legislation, the cloud customer (as data controller) will have to ensure prior to any proposed transfer of data outside of the EEA, that an "adequate" level of protection is in place. The EU Commission has deemed Switzerland, Guernsey, Argentina, Isle of Man, Canada, Faroe Islands, Jersey, Andorra and Israel to be countries which provide an adequate level of data protection.

Irish data protection legislation also provides that, in the event an adequate level of protection is not in place, personal data may be transferred outside the EEA in accordance with the US Safe Harbor programme, EU model contracts or Binding Corporate Rules.


Cloud Contract

Data protection legislation stipulates that, in cases where personal data is being processed for a data controller by a data processor, a written contract must be in place between the data controller and data processor. The contract must provide that the data processor will only process personal data in accordance with the instructions of the data controller and that the data processor will implement appropriate technical and organisational security measures to protect such personal data.

The Article 29 Working Party emphasises that applicable cloud contracts must include a set of standardised data protection safeguards (ie, security assurances) as well as additional mechanisms that can prove suitable for facilitating due diligence and accountability (such as audits or third party certification).

Certain contracts for cloud services will be concluded online on the basis of the cloud provider's standard terms and conditions. It is important that data controllers read such terms and conditions to ensure that they contain the provisions required by data protection legislation as discussed above.


Implications for the Cloud

The Article 29 Working Party opinion and the Commissioner's guidance advise businesses to conduct comprehensive risk assessments of any prospective cloud provider. The same data protection concerns exist for a data controller when outsourcing data processing to a cloud provider as to any other provider of data processing services. The guidance, however, places particular emphasis on the necessity for a high level of security when contracting for data processing services in the cloud space.

It is critical that a data controller assess the service offering of the cloud services provider and the terms and conditions of the contract to ensure that, as a data controller, it will be in compliance with its obligations under data protection legislation in the event that the data processing is outsourced to the cloud services provider.

The Commissioner notes that the technology surrounding cloud computing is constantly evolving. It is likely, therefore, that further guidance will be needed in the future to keep pace with the developing technology.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions