Sharing and transferring personal data to third parties


It is useful to list all the organisations that you share data with on a regular basis. You will have already identified these organisations in your record of processing. Below are some examples.

It is important to distinguish between a processor and a controller as the obligations differ. Other controllers have the same obligations as you but processors do not and, therefore, you must have a written contract in place to limit what they can do with your data. There is an obligation to have a legally binding agreement in place between a controller and a processor. Sometimes these can be found in standard terms and conditions or sometimes in the case of software providers, the data processing agreement can be found on their website.

Data controller Data subject Share with - 3rd party controllers Share with - 3rd party processors
law firm potential clients courts case management database if not sorted on your server
clients solicitors 'on the other side' your cloud-based server provider if not inhouse
other relevant individuals witnesses, beneficiaries, executors expert witnesses supplier of confidential waste shredding
employees Registers of Scotland document storage company
partners Scottish Legal Aid Board outsourced payroll
HMRC supplier who photocopies large amounts of productions for court
financial advisers
Law Society of Scotland

Sharing data with processors

Your obligations

  • Carry out due diligence on the processor
  • Monitor compliance with data protection laws and your contract
  • Have an appropriate written contract in place with any processor 

The level of due diligence and monitoring compliance carried out depends on the risks inherent in the processing. A greater level of due diligence is expected if special category data is being processed on an ongoing basis.

Written contract

There is an obligation to have a legally binding contract between the controller and the processor.

The contract must set out the following:

  • The subject matter of the processing
  • The duration of processing
  • The nature of processing
  • The purpose of processing
  • The type of personal data to be processed
  • The categories of data subjects whose data is to be processed
  • The rights and obligations of the data controller

The contract must include the following instructions to the processor:

  • The processor must only process the data on the instructions of the controller
  • Any individual processing data for the processor must have a commitment to confidentiality
  • The processor must take appropriate security measures
  • The processor must assist the controller to comply with data subjects’ rights, including reporting any personal data breaches to the controller immediately
  • The controller identifies whether the personal data should be deleted or returned to the controller at the end of the provision of services
  • The processor must assist the controller with the provision of information for audit or inspection purposes

Sub-processors

If the processor wishes to sub-contract any processing, they must obtain written authorisation from the controller. This can be provided in general terms in advance, but the processor must tell the controller the identity of any new sub-processor and any other changes.

This allows the law firm as a controller to ensure control over the data you hold and to advise the data subjects where their data is and what is happening to it. This helps to ensure fair and transparent processing.

The processor should have a similar contract in place with any sub-processor to ensure. Any personal data breaches suffered by the sub-processor should be reported to the processor immediately.

 

Sharing data with other controllers


There must always be a lawful basis for sharing any personal data. Recipients (or categories of recipients) of the data must be identified in your fair processing/privacy notice.

Law firms should consider whether they require a written agreement to be in place with any organisation it passes data to. For example, you may wish to point out why the data is being shared and what should happen to it once there is no requirement for it to be processed by that party any longer. You should also consider security of processing and make attempts to ensure that the data will be held securely by the controller you are passing your data to.
This extent of this requirement will depend on the organisation and it is unlikely to be required when personal data is shared with the court, but perhaps should be considered when special category data is passed to an expert or other individual that the data controller has little knowledge of. Although these organisations or individuals have their own obligations as data controllers, you may decide to set out your expectations in your letter of instruction, particularly in relation to security and retention of personal data.

Name Status Contract with new T&C's Due diligence Monitor
Case management system processor yes, processor contract statement from supplier at time of contract renewal
Expert witness controller data sharingprovisions in letter of engagement known to us and registered