Data Breach Topics
- What is a personal data breach?
- What breaches do we need to notify the ICO about?
- What role do processors have?
- How much time do we have to report a breach?
- What information must a breach notification to the supervisory authority contain?
- What if we don’t have all the required information available yet?
- How do we notify a breach to the ICO?
- When do we need to tell individuals about a breach?
- What information must we provide to individuals when telling them about a breach?
- Does the GDPR require us to take any other steps in response to a breach?
- What else should we take into account?
- What happens if we fail to notify?
The GDPR Data Breach Management Process
What is a personal data breach?
A personal data breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data. This includes breaches that are the result of both accidental and deliberate causes. It also means that a breach is more than just about losing personal data.
Example
Personal data breaches can include:
* access by an unauthorised third party;
* deliberate or accidental action (or inaction) by a controller or processor;
* sending personal data to an incorrect recipient;
* computing devices containing personal data being lost or stolen;
* alteration of personal data without permission; and
* loss of availability of personal data.
A personal data breach can be broadly defined as a security incident that has affected the confidentiality, integrity or availability of personal data. In short, there will be a personal data breach whenever any personal data is lost, destroyed, corrupted or disclosed; if someone accesses the data or passes it on without proper authorisation; or if the data is made unavailable, for example, when it has been encrypted by ransomware, or accidentally lost or destroyed.
Recital 87 of the GDPR makes clear that when a security incident takes place, you should quickly establish whether a personal data breach has occurred and, if so, promptly take steps to address it, including telling the ICO if required.
What breaches do we need to notify the ICO about?
When a personal data breach has occurred, you need to establish the likelihood and severity of the resulting risk to people’s rights and freedoms. If it’s likely that there will be a risk then you must notify the ICO; if it’s unlikely then you don’t have to report it. However, if you decide you don’t need to report the breach, you need to be able to justify this decision, so you should document it.
In assessing risk to rights and freedoms, it’s important to focus on the potential negative consequences for individuals. Recital 85 of the GDPR explains that:
“A personal data breach may, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons such as loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned.”
This means that a breach can have a range of adverse effects on individuals, which include emotional distress, and physical and material damage. Some personal data breaches will not lead to risks beyond possible inconvenience to those who need the data to do their job. Other breaches can significantly affect individuals whose personal data has been compromised. You need to assess this case by case, looking at all relevant factors.
Example
The theft of a customer database, the data of which may be used to commit identity fraud, would need to be notified, given the impact this is likely to have on those individuals who could suffer financial loss or other consequences. On the other hand, you would not normally need to notify the ICO, for example, about the loss or inappropriate alteration of a staff telephone list.
So, on becoming aware of a breach, you should try to contain it and assess the potential adverse consequences for individuals, based on how serious or substantial these are, and how likely they are to happen.
For more details about assessing risk, please see section IV of the Article 29 Working Party (WP29) guidelines on personal data breach notification. WP29 has been replaced by the European Data Protection Board (EDPB) which has endorsed these guidelines.
What role do processors have?
If your organisation uses a data processor, and this processor suffers a breach, then under Article 33(2) it must inform you without undue delay as soon as it becomes aware.
Example
Your organisation (the controller) contracts an IT services firm (the processor) to archive and store customer records. The IT firm detects an attack on its network that results in personal data about its clients being unlawfully accessed. As this is a personal data breach, the IT firm promptly notifies you that the breach has taken place. You in turn notify the ICO.
This requirement allows you to take steps to address the breach and meet your breach-reporting obligations under the GDPR.
If you use a processor, the requirements on breach reporting should be detailed in the contract between you and your processor, as required under Article 28. For more details about contracts, please see our draft GDPR guidance on contracts and liabilities between controllers and processors.
How much time do we have to report a breach?
You must report a notifiable breach to the ICO without undue delay, but not later than 72 hours after becoming aware of it. If you take longer than this, you must give reasons for the delay.
Section II of the WP29 Guidelines on personal data breach notification gives more details of when a controller can be considered to have “become aware” of a breach.
What information must a breach notification to the supervisory authority contain?
When reporting a breach, the GDPR says you must provide:
* a description of the nature of the personal data breach including, where possible:
* the categories and approximate number of individuals concerned; and
* the categories and approximate number of personal data records concerned;
* the name and contact details of the data protection officer (if your organisation has one) or other contact point where more information can be obtained;
* a description of the likely consequences of the personal data breach; and
* a description of the measures taken, or proposed to be taken, to deal with the personal data breach, including, where appropriate, the measures taken to mitigate any possible adverse effects.
What information must a breach notification to the supervisory authority contain?
The GDPR recognises that it will not always be possible to investigate a breach fully within 72 hours to understand exactly what has happened and what needs to be done to mitigate it. So Article 33(4) allows you to provide the required information in phases, as long as this is done without undue further delay.
However, we expect controllers to prioritise the investigation, give it adequate resources, and expedite it urgently. You must still notify us of the breach when you become aware of it, and submit further information as soon as possible. If you know you won’t be able to provide full details within 72 hours, it is a good idea to explain the delay to us and tell us when you expect to submit more information.
Example
You detect an intrusion into your network and become aware that files containing personal data have been accessed, but you don’t know how the attacker gained entry, to what extent that data was accessed, or whether the attacker also copied the data from your system.
You notify the ICO within 72 hours of becoming aware of the breach, explaining that you don’t yet have all the relevant details, but that you expect to have the results of your investigation within a few days. Once your investigation uncovers details about the incident, you give the ICO more information about the breach without delay.
What if we don’t have all the required information available yet?
The GDPR recognises that it will not always be possible to investigate a breach fully within 72 hours to understand exactly what has happened and what needs to be done to mitigate it. So Article 33(4) allows you to provide the required information in phases, as long as this is done without undue further delay.
However, we expect controllers to prioritise the investigation, give it adequate resources, and expedite it urgently. You must still notify us of the breach when you become aware of it, and submit further information as soon as possible. If you know you won’t be able to provide full details within 72 hours, it is a good idea to explain the delay to us and tell us when you expect to submit more information.
Example
You detect an intrusion into your network and become aware that files containing personal data have been accessed, but you don’t know how the attacker gained entry, to what extent that data was accessed, or whether the attacker also copied the data from your system.
You notify the ICO within 72 hours of becoming aware of the breach, explaining that you don’t yet have all the relevant details, but that you expect to have the results of your investigation within a few days. Once your investigation uncovers details about the incident, you give the ICO more information about the breach without delay.
How do we notify a breach to the ICO?
To notify the ICO of a personal data breach, please see our pages on reporting a breach.
Remember, in the case of a breach affecting individuals in different EU countries, the ICO may not be the lead supervisory authority. This means that as part of your breach response plan, you should establish which European data protection agency would be your lead supervisory authority for the processing activities that have been subject to the breach. For more guidance on determining who your lead authority is, please see the WP29 guidance on identifying your lead authority, which has been endorsed by the EDPB.
When do we need to tell individuals about a breach?
If a breach is likely to result in a high risk to the rights and freedoms of individuals, the GDPR says you must inform those concerned directly and without undue delay. In other words, this should take place as soon as possible.
A ‘high risk’ means the threshold for informing individuals is higher than for notifying the ICO. Again, you will need to assess both the severity of the potential or actual impact on individuals as a result of a breach and the likelihood of this occurring. If the impact of the breach is more severe, the risk is higher; if the likelihood of the consequences is greater, then again the risk is higher. In such cases, you will need to promptly inform those affected, particularly if there is a need to mitigate an immediate risk of damage to them. One of the main reasons for informing individuals is to help them take steps to protect themselves from the effects of a breach.
Example:
A hospital suffers a breach that results in an accidental disclosure of patient records. There is likely to be a significant impact on the affected individuals because of the sensitivity of the data and their confidential medical details becoming known to others. This is likely to result in a high risk to their rights and freedoms, so they would need to be informed about the breach.
A university experiences a breach when a member of staff accidentally deletes a record of alumni contact details. The details are later re-created from a backup. This is unlikely to result in a high risk to the rights and freedoms of those individuals. They don’t need to be informed about the breach.
If you decide not to notify individuals, you will still need to notify the ICO unless you can demonstrate that the breach is unlikely to result in a risk to rights and freedoms. You should also remember that the ICO has the power to compel you to inform affected individuals if we consider there is a high risk. In any event, you should document your decision-making process in line with the requirements of the accountability principle.
What information must we provide to individuals when telling them about a breach?
You need to describe, in clear and plain language, the nature of the personal data breach and, at least:
* the name and contact details of your data protection officer (if your organisation has one) or other contact point where more information can be obtained;
* a description of the likely consequences of the personal data breach; and
* a description of the measures taken, or proposed to be taken, to deal with the personal data breach and including, where appropriate, of the measures taken to mitigate any possible adverse effects.
Does the GDPR require us to take any other steps in response to a breach?
You should ensure that you record all breaches, regardless of whether or not they need to be reported to the ICO.
Article 33(5) requires you to document the facts relating to the breach, its effects and the remedial action taken. This is part of your overall obligation to comply with the accountability principle, and allows us to verify your organisation’s compliance with its notification duties under the GDPR.
As with any security incident, you should investigate whether or not the breach was a result of human error or a systemic issue and see how a recurrence can be prevented – whether this is through better processes, further training or other corrective steps.
What else should we take into account?
The following aren’t specific GDPR requirements, but you may need to take them into account when you’ve experienced a breach.
It is important to be aware that you may have additional notification obligations under other laws if you experience a personal data breach. For example:
If you are a communications service provider, you must notify the ICO of any personal data breach within 24 hours under the Privacy and Electronic Communications Regulations (PECR). You should use our PECR breach notification form, rather than the GDPR process. Please see our pages on PECR for more details.
If you are a UK trust service provider, you must notify the ICO of a security breach, which may include a personal data breach, within 24 hours under the Electronic Identification and Trust Services (eIDAS) Regulation. Where this includes a personal data breach you can use our eIDAS breach notification form or the GDPR breach-reporting process. However, if you report it to us under the GDPR, this still must be done within 24 hours. Please read our Guide to eIDAS for more information.
If your organisation is an operator of essential services or a digital service provider, you will have incident-reporting obligations under the NIS Directive. These are separate from personal data breach notification under the GDPR. If you suffer an incident that’s also a personal data breach, you will still need to report it to the ICO separately, and you should use the GDPR process for doing so.
You may also need to consider notifying third parties such as the police, insurers, professional bodies, or bank or credit card companies who can help reduce the risk of financial loss to individuals.
The EDPR, which has replaced WP29, may issue guidelines, recommendations and best practice advice that may include further guidance on personal data breaches. You should look out for any such future guidance. Likewise, you should be aware of any recommendations issued under relevant codes of conduct or sector-specific requirements that your organisation may be subject to.
What happens if we fail to notify?
Failing to notify a breach when required to do so can result in a significant fine up to 10 million euros or 2 per cent of your global turnover. The fine can be combined the ICO’s other corrective powers under Article 58. So it’s important to make sure you have a robust breach-reporting process in place to ensure you detect and can notify a breach, on time; and to provide the necessary details.