What is Data Breach?
A personal data breach is security incident that results in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data. Personal data breaches can include:
- access by an unauthorized 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.
According to GDPR article 33, data controller has to report certain types of personal data breaches to the Data Protection Authority (DPA) within 72 hours after becoming aware of the breach.
In what circumstances do you need to report a data breach?
If you experience a personal data breach you need to consider whether this poses a risk to affected individuals. You need to consider the likelihood and severity of the risk to individual’s rights and freedoms, following the breach. When you’ve made this assessment, if it’s likely there will be a risk then you must notify the DPA.
What happens if there is no risk and you don’t have to report to Authority?
GDPR Article 33 (5): “The controller shall document any personal data breaches, comprising the facts relating to the personal data breach, its effects and the remedial action taken. That documentation shall enable the supervisory authority to verify compliance with this Article.”
Breach Register is available in GDPR Register
Reporting the breach to Data Protection Authority
A notifiable breach must be reported to the DPA without undue delay, but not later than 72 hours after becoming aware of it. If you will notify DPA later than 72 hours, you must provide reasons for the delay.
When reporting a personal data breach, you will have to provide following information::
- a description of the nature of the 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 DPO (if your organisation has one) or another contact point to obtain information;
- 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. Also, including, where appropriate, the measures taken to mitigate any possible adverse effects.
It may happen that it’s not possible to provide immediately all information listed above. You may provide such information in phases.
The notification has to be done to Data Protection Authority of the location of controller company. Contacts of EU Data Protection Authorities by countries can be found here.
Notifying Data Subjects about the Data Breach
Some breaches are likely to result a high risk to the rights and freedoms of individuals. In such situation, controller must inform affected individuals directly and without undue delay. One of the main reasons for informing individuals is to help them take steps to protect themselves from the effects of the 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 another 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.
Should Processor report a Data Breach?
If your organisation is a data processor, and your suffer a data breach, you have to inform your controller without undue delay as soon as you become aware of the breach. There may be special conditions of reporting defined by data controller. The requirements for breach reporting should be detailed in the Data Processing Agreement between you and your controller.
