It’s clear that in case of a personal data breach on the level of the processor a lot goes on between both and processors need to notify controllers. For example, hackers could target a company database in order to erase files or disrupt processes. Managing data has always been a part of the IT lifecycle. Such illegal disposition of the company’s data may pose a risk to the rights and freedoms of the personal data subjects whose information company might hold. That’s not just a matter of liability but still…. This is of course also the case from a GDPR fine perspective. However, there are more exceptions regarding the breach notification duty of controller towards data subject than regarding the breach notification towards supervisory authorities (and from processors to controllers). Not so long ago, data was something which was gathered for governmental, scientific or medical research, and not by companies whether large or small. Data processors are bound to not just assist controllers, controllers are also bound to choose processors they can rely upon from, among others, a GDPR risk and compliance perspective. Therefore, ransomware attacks can be associated with GDPR and treated as data breaches. Lastly, you must ensure that your strategy keeps apace with technology. 37 GDPR – Designation of the data protection officer Wisetek specializes in professional ITAD services including Data Destruction, Hard Drive Destruction, Hard Drive Disposal, Shredding, and Degaussing, from its 5 main facilities across the USA.Â, Leaders in IT Asset Disposal, Reuse & Data Destruction Services Worldwide, enquiries@wisetek.net Instead it’s an ongoing approach to data which, as more and more data is produced every day, will become embedded in all your IT processes. Following the rules regarding personal data breach notifications and communications obviously doesn’t mean that other consequences won’t take place. The special categories specifically include: genetic data relating to the inherited or acquired genetic characteristics which give unique information about a person’s physiology or the health of that natural person The consequence of this is that every three to five years, you will, not only be replacing such computers, but have to manage the data and assets too. 34 GDPR – Communication of a personal data breach to the data subject; Art. Sensitive personal data is also covered in GDPR as special categories of personal data. “A breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored, or otherwise processed.” GDPR goes on to clarify that a data breach is a type of security incident but that not all security incidents qualify as a data breach. There are several shared responsibilities for data controllers and data processors under GDPR. the data protection officer or DPO), the types of data affected, the number of data subjects affected, what has been done ever since the breach and more. And there is indeed a duty to inform data subjects too in case of a personal data breach, under certain conditions. And it’s also why there is a personal data breach notification duty (officially communication duty) from the controller to the data subject. When the personal data breach is likely to lead to risks for rights and freedoms of data subjects, not just in the scope of the GDPR but also beyond. The Guidelines add that this includes even an incident that results in personal data being only temporarily lost or unavailable. Personal data breach notification duties of controllers and processors. While such stories grab the headlines, data breaches can – and do – affect companies of any size that hold other people’s data. Now that the GDPR is in full effect, it’s vital that businesses are aware of what personal data breaches are and have made preparations to handle to these. GDPR and data management is a process which will be with us for the foreseeable future. Similar discussions can of course occur on other levels of the personal data breach notification duty as well as the quote from GDPR Recital on the relativity and context of the notion of ‘undue delay’ in notifications showed. To ensure your ITAD strategy is compliant talk to our team of experts in Wisetek today. GDPR is not like the Millennium bug, it cannot be ‘solved’ by adapting certain processes and then forgotten about. According to Gartner Research, the average lifespan of a desktop PC is 43 months, and 36 months for mobile PCs. The effort to make all affected data subjects would be too high or, let’s say, disproportionate. Treating this data with its due respect prompted authorities in Europe to usher in GDPR and during its first year, 206,326 cases were reported across the 31 countries in the European Economic Area. How else could it be? Breaches are covered in Article 33 and 34 of the legislation, but the addition of Recital 85 is an easier way to see what a personal data breach means: A certified and professional ITAD strategy incorporated into your IT Asset Management process will typically achieve a 30% cost savings in the first year, and at least 5% cost savings in each of the following five years. Look at it as one of many steps to take and undoing the risk in case of a personal data breach is most probably your first job as in “right here and right now”. Since the personal data breach happened the data controller has done what needed to be done in order to stop that likely risk to happen. The latter is the duty of the controller who has a personal data breach notification towards the supervisory authority. As for the worse offenders, the Netherlands with 15,400 data breaches tops the list, Germany is in second with 12,600, while the UK is in third place with 10,000 breaches. GDPR defines three types of data breaches – it’s vital to be aware of them. Within 72 hours unless there are very good reasons that the controller needs to add to his notification for a potential notification past that time limit. 35 GDPR – Data protection impact assessment; Art. Liability in case of personal data breaches is an obvious one and so is the personal data breach notification duty. It's not just changing the landscape of regulated data protection law, but the way that companies collect and manage personal data. Data breaches are always bad, if they include personal data they are often even worse and when the ‘bad guys’ also have access to special types of personal data which need to be taken extra care off (sensitive personal data, personal data of children and so forth) the typical consequences of any serious (personal) data breach such as reputation damage, direct costs, indirect costs and much more become even more significant. 44 (0) 1182 140 844, Copyright 2020 Wisetek | All Rights Reserved. However, with the advent of GDPR, data breaches mean, not only a possible loss of corporate reputation and financial loss, but hefty fines too. Under the new regulation, the processor must notify the data controller of a personal data breach, after having become aware of it, without undue delay. Although the content of this article is thoroughly checked we are not liable for potential mistakes and advice you to seek assistance in preparing for EU GDPR compliance. The personal data breach notification towards the (proper) supervisory authority needs to happen without unnecessary delay after the data controller became aware of the breach. 4 (12) GDPR: “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 transmitted, stored or otherwise processed.” Data is being gathered and stored in ways and amounts which were unthinkable thirty years’ ago: from smartphones to photocopiers, PCs to laptops, cloud-based systems to on-premise servers, and not to mention the many ways in which data can be shared. When data breaches are reported in the media, they are usually the preserve of large corporations who have leaked millions of personal records and are now facing serious legal action. Art. In general, GDPR is concerned with data breaches governing personal data which reveals ‘A breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to, personal data transmitted, stored, or otherwise processed. We probably don’t have to expand too much on that. That’s why the risk of the breach for the data subject takes center stage in all the above. The rules regarding that piece of the bigger personal data breach notification duty are relatively well known: Obviously a personal data breach notification needs to come with a bunch of information regarding the breach, the people to get in touch with (e.g. The controller should communicate to the data subject a personal data breach, without undue delay, where that personal data breach is likely to result in a high risk to the rights and freedoms of the natural person in order to allow him or her to take the necessary precautions, Taking measures to minimize impact and risk in case of a breach most obviously can’t wait until after notification of it…, 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, unauthorized reversal of pseudonymization, 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, The fact that the notification was made without undue delay should be established taking into account in particular the nature and gravity of the personal data breach and its consequences and adverse effects for the data subject, In setting detailed rules concerning the format and procedures applicable to the notification of personal data breaches, due consideration should be given to the circumstances of that breach, Personal data breach notification and communication duties under the GDPR. This occurs when there is an accidental or unauthorised loss of access to, or destruction of, personal data. OJ L 127, 23.5.2018 as a neatly arranged website. Understanding such threats is the first step in their prevention. While trying to meet GDPR requirements, many companies overlook the threat of ransomware attacks. It’s there for personal data protection and the protection of rights and freedoms of data subjects in relation with personal data and privacy – and it is a legal framework. Although not being part of data subject rights in the very strict sense, the right to be informed and the consequences of the several duties regarding personal data breach notification and communication also form a data subject right under GDPR in a broader sense. 36 GDPR – Prior consultation; Art. While all this data helps to run our companies with great productivity, it also comes with great responsibility. First American Financial Corp, one of the largest title insurers in the US, was sued by a client who claims that the company’s lax security measures put him at risk of identity theft, along with millions of others whose personal information could be accessed through its website. regarding those sufficient technical and organizational measures, defining what disproportionate would mean as that is a very relative notion that no doubt also needs to be seen in the scope of how bad the breach is and in gauging when really enough has happened to stop that risk from happening). According to GDPR, there are three types of data breaches: A breach of confidentiality is when data or private information is disclosed to a third party without the data owner’s consent. Varonis helps companies meet GDPR compliance requirements: automatically identify and classify GDPR data, establish access controls and data protection policies, and build a unified data security strategy to protect customer data. In the GDPR text a personal data breach is defined as a breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed. With this in mind, it’s vital to develop an ongoing strategy when disposing of your IT assets. The GDPR doesn’t care too much about all the costs, hassle, potential discussions and other consequences for the controller or processor, certainly not in the first place (but it does care the controller too as you’ll read below). This duty again only goes when the personal data breach will likely result in high risks to freedoms and rights of the data subject and it needs to happen ASAP as well. As you can read between the lines of these exceptions (and in the related GDPR Articles) there is indeed room for potential discussions (e.g. The GDPR will change data protection requirements and make stricter obligations for processors and controllers regarding notice of personal data breaches. Whether an intentional breach, accidental error or theft, the data owner is entitled to take legal action for potential losses or damage that comes as a result of the breach of confidentiality. The GDPR defines a personal data breach as “a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data”. Last but not least do note that the supervisory authority has the last say in the personal data breach communication duty towards the data subject and can tell the controller to move faster and do it or, the other way around, decide that the controller has met any of the just mentioned exceptions in case of discussion. As mentioned on our General Data Protection Regulation (GDPR) page there are strict rules concerning personal data breach notifications. Obviously a personal data breach is one of the worst things that can happen to all of us: consumers or data subjects, to use the official GDPR language, and organizations/companies (both data processors and data controllers) alike. Here you can find the official PDF of the Regulation (EU) 2016/679 (General Data Protection Regulation) in the current version of the OJ L 119, 04.05.2016; cor. In general, GDPR is concerned with data breaches governing personal data which reveals ‘A breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to, personal data transmitted, stored, or otherwise processed. Damage control and taking measures to minimize impact and risk in case of a breach most obviously can’t wait until after notification of it…. The personal data breach notification isn’t really defined but indeed means a duty to notify the proper instances when a personal data breach has occurred and the involved data controllers and data processors are aware of it. And they don’t have 72 hours: it’s ASAP (meaning no unnecessary delay). The data processor has a lot of responsibilities and duties towards controllers and this is one of them. To ensure that you are not subject to a data breach, it’s important to understand what one actually is. All Articles of the GDPR are linked with suitable recitals. This is of course also the case from a GDPR fine perspective. 33 GDPR – Notification of a personal data breach to the supervisory authority; Art. Of course it’s a duty of the controller and, totally in the spirit of the GDPR, it needs to happen in a transparent, understandable way with clear and plain language. Failure to understand your duty concerning the storing, and ultimately the destruction of data has become a serious offence. Indeed not the kind of thing we like to do when bad things happened. Furthermore, a total of €56m in fines have been levied at those found in breach. In other words, any information which is clearly about a person and may include their ID number, online identifier, location data, or specific information relating to the physical, physiological, genetic, mental, economic, cultural or social identity, of that person. These duties are covered in several GDPR Articles of the final GDPR text and also come back several times in the recitals. Yet the digitisation of our lives has radically altered this. This is when there is an unauthorised or accidental alteration of personal data. Welcome to gdpr-info.eu. This will ensure that your old assets are disposed of in line with data regulations and help to prevent against certain types of data breaches. Therefore, it’s essential to have robust processes in place to manage your data and mitigate against the associated risks. However, then there must be some other form of communication so that data subjects get informed in an ‘equally effective manner’. If a personal data breach concerns the theft of or access to personal data that can pose risks to the data subject whose data are involved and when there are issues on the front of GDPR compliance (which, strictly speaking doesn’t need to be the case when there is a breach, everyone knows that there is no such thing as perfect cybersecurity and that the bad guys increasingly are very smart and often even a bit ahead), it’s THE moment of truth regarding GDPR compliance and the liability game between controllers and processors can begin. As said, the processor also has a breach notification duty. By way of resuming it all in a more visual way below is a small infographic showing the essence of the mentioned rules. Equifax had already been fined £500,000 [~$625,000] in the UK for the 2017 breach, which was the maximum fine allowed under the pre-GDPR Data Protection Act 1998. 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