Personal data breaches

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.

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 accidentally lost, destroyed, corrupted or disclosed; if someone accesses the data or passes it on without proper authorisation; or if the data is made unavailable and this unavailability has a significant negative effect on individuals.

Recital 87 of the GDPR says 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.

Remember, the focus of risk regarding breach reporting is on the potential negative consequences for individuals. Recital 85 of the GDPR explains that:

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.

So, on becoming aware of a breach, you should 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 guidelines on personal data breach notification.

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 requirement to inform 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 effect of a 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.

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 any data protection officer you have, 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 deal with the personal data breach and, where appropriate, a description of the measures taken to mitigate any possible adverse effects.

If possible, you should give specific and clear advice to individuals on the steps they can take to protect themselves, and what you are willing to do to help them. Depending on the circumstances, this may include such things as:

• forcing a password reset;
• advising individuals to use strong, unique passwords; and
• telling them to look out for phishing emails or fraudulent activity on their accounts.

When a personal data breach has occurred, you need to establish the likelihood of the risk to people’s rights and freedoms. If a risk is likely, you must notify the ICO; if a risk is unlikely, 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.

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.

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 GDPR guidance on contracts and liabilities between controllers and processors.

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 Article 29 Working Party Guidelines on personal data breach notification gives more details of when a controller can be considered to have ‘become aware’ of a breach.

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 and, where appropriate, of the measures taken to mitigate any possible adverse effects.

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 its 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.

To notify the ICO of a personal data breach, please see ICO pages on reporting a breach. These pages include a self-assessment tool and some personal data breach examples.

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 Article 29 Working Party guidance on identifying your lead authority.

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 regarding 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. Human error is the leading cause of reported data breaches. To reduce the risk of this, consider:

• mandatory data protection induction and refresher training;
• support and supervising until employees are proficient in their role.
• updating policies and procedures for employees to refer to;
• working to a principle of “check twice, send once”;
• implementing a culture of trust – employees should feel able to report incidents of near misses;
• investigating the root causes of breaches and near misses; and
• protecting your employees and the personal data you are responsible for. This could include:
  • Restricting access and auditing systems, or
  • Implementing technical and organisational measures, eg disabling autofill.

As mentioned previously, as part of your breach management process you should undertake a risk assessment and have an appropriate risk assessment matrix to help you manage breaches on a day-to-day basis. This will help you to assess the impact of breaches and meet your reporting and recording requirements. This will provide a basis for your breach policy and help you demonstrate your accountability as a data controller.

The following aren’t specific GDPR requirements regarding breaches, but you should take them into account when you’ve experienced a breach.

As a result of a breach an organisation may experience a higher volume of data protection requests or complaints, particularly in relation to access requests and erasure. You should have a contingency plan in place to deal with the possibility of this.  It is important that you continue to deal with those requests and complaints, alongside any other work that has been generated as a request of the breach.  You should also consider how you might manage the impact to individuals, including explaining how they may pursue compensation should the situation warrant it.

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 that may include a personal data breach within 24 hours under the Electronic Identification and Trust Services (eIDAS) Regulation. 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 European Data Protection Board, which has replaced the WP29, has endorsed the WP29 Guidelines on Personal Data Breach Notification. You should also be aware of any recommendations issued under relevant codes of conduct or sector-specific requirements that your organisation may be subject to.

Failing to notify the ICO of a breach when required to do so can result in a heavy fine of up to 10 million euros or 2 per cent of your global turnover. The fine can be combined with the ICO’s other corrective powers under Article 58. It is important to make sure you have a robust breach-reporting process in place to ensure you detect, and notify breaches, on time and to provide the necessary details, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of data subjects. 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.