Articles

Article 29 Data Protection Working Party issues Opinion on Personal Data Breach Notifications

Article 29 Data Protection Working Party issues Opinion on Personal Data Breach Notifications

Article 29 Data Protection Working Party issues Opinion on Personal Data Breach Notifications

15.07.2014

On 25 March 2014, the Article 29 Working Party (“WP 29”) issued Opinion 03/2014 (the “Opinion”). The Opinion provides guidance to data controllers to help them decide whether to notify data subjects about a personal data breach.

This article was co-written by Valerie Vanryckeghem

In the first part of the Opinion, the WP 29 considers the notification obligations of telecommunications service providers that are imposed by the Directive 2002/58/EC. This Directive requires personal data breaches to be notified to the competent national authority. In addition, when the data breach is likely to adversely affect the personal data or privacy of a data subject, the data controller must also notify the data subject about the breach without undue delay.

However, the Directive 2002/58/EC as well as the Proposed EU General Data Protection Regulation (the “Proposed Regulation”) contain an exemption to this notification obligation. That is, if the provider has demonstrated to the satisfaction of the competent authority that it has implemented appropriate technological protection measures to render the data unintelligible to any person who is not authorized to access it and if those measures were applied to the data concerned by the security breach, then notification of a personal data breach to a data subject is not required.

The WP 29 advises controllers to take appropriate technological and organizational measures to ensure a level of security that is appropriate to the risk represented by the processing so that they can rely on the exemption and avoid the need to notify the data subject. In this respect, the WP 29 notes that data controllers should proceed with notification when they have doubts about the likelihood of the adverse effects on the personal data or privacy of the data subjects.

In the second part of the Opinion, the WP29 lists both examples of data breaches where the affected data subjects should be notified as well as examples of cases where notification to the affected data subjects would not be required. The WP 29 also gives examples of technical measures which, if they had been in place prior to the breach, might have allowed for the avoidance of the need to notify the data subject, such as a confidentiality data breach that only concerns either encrypted data with a state of the art algorithm or salted/keyed, hashed data with a state of the art hash function (assuming all the relevant keys and salts are not compromised).

Finally, the Opinion talks about the various considerations companies face when assessing whether or not to notify the affected data subjects. The WP 29 emphasizes the need to factor in likely secondary adverse effects on the data subjects and indicates that companies should notify even if only one data subject is affected.

The Opinion can be found on http://ec.europa.eu/justice/data-protection/article-29/.

Student trainee Steffie De Cock also contributed to this article.

 

Click here to see a printable version of this article

All rights reserved. Care has been taken to ensure that the content of this e-bulletin is as accurate as possible. However the accuracy and completeness of the information in this e-bulletin, largely based upon third party sources, cannot be guaranteed. The materials contained in this e-bulletin have been prepared and provided by Stibbe for information purposes only. They do not constitute legal or other professional advice and readers should not act upon the information contained in this e-bulletin without consulting legal counsel. Consultation of this e-bulletin will not create an attorney-client relationship between Stibbe and the reader. The e-bulletin may be used only for personal use and all other uses are prohibited.

Team

Related news

23.07.2019 LU law
The Revised CSSF Cloud Circular

Articles - On 27 March 2019, the Luxembourg supervisory authority for the financial sector (the Commission de surveillance du secteur financier or CSSF) published the long-awaited CSSF Circular 19/714 amending the CSSF Circular 17/654 on IT outsourcing relying on a cloud computing infrastructure (the Revised Cloud Circular).

Read more

05.07.2019 EU law
The two sides of the ECS coin

Articles - The concept of ‘electronic communications service’ (“ECS”) defined in Article 2(c) of Directive 2002/21/EC (“Framework Directive”) has been interpreted in two decisions of the ECJ in June 2019: C‑142/18 Skype communications and C-193/18 Google LLC.

Read more

22.07.2019 NL law
HagaZiekenhuis beboet voor datalek

Short Reads - Enkele maanden geleden vierden we de eerste verjaardag van de Algemene Verordening Gegevensbescherming (AVG) met een uitgebreide beschouwing  over de belangrijkste  ontwikkelingen uit  het eerste jaar van de verordening. We concludeerden daarin onder meer dat de door sommigen voorspelde hoge bestuurlijke boetes voor overtredingen van de AVG tot dan toe  - zowel in Nederland als in de andere EU-lidstaten - grotendeels waren uitgebleven.

Read more

02.07.2019 NL law
Debate night: HR Analytics: opportunity or threat?

Seminar - On 2 July 2019, Stibbe's Digital Economy Group will host a debate night in Amsterdam on the hot topic of HR analytics. During Stibbe's debate night, speakers from the world of business, politics, science and law will exchange views on HR analytics, how they can be used in practice, and their development in the context of employment and privacy law.

Read more

15.07.2019 EU law
ICO to impose record-breaking fines for inadequate security measures and data breaches

Short Reads - Though the European data protection authorities have taken their time in enforcing the GDPR, two announcements by the ICO in the UK regarding proposed fines for British Airways and Marriott demonstrate that large fines are about to start landing regularly. Both of the substantial fines are to be handed out as a result of shortcomings in handling data breaches caused by cyber-attacks.

Read more

27.06.2019 NL law
Stibbe launches website about Digital Economy

Inside Stibbe - Stibbe's Digital Economy group published a new website this week: Stibbedigital.com With this new website we aim to view technological developments including artificial intelligence (AI), blockchain, the Internet of Things, smart mobility and the rise of digital platforms from a legal perspective.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring