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New 24 hour deadline for notifying personal data breaches
New rules that came into force on 25 August 2013 under Regulation 611/2013/EU (the “Regulation”) now require certain personal data breaches to be notified to the Information Commissioner’s Office (“ICO”) within 24 hours.
Prior to the Regulation coming into force, under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”) personal data breaches were to be reported to the ICO ‘as soon as possible’. The Regulation now supplements PECR and sets a tight deadline of 24 hours for notifying certain data breaches. This important change means that certain sector-specific organisations must ensure that they have the necessary internal procedures in place to allow the requisite information to be compiled (including time to obtain advice from external advisers) within the short timescales.
The ICO has published guidance on the new rules which provides information to help understand which organisations the revised rules under PECR apply to and when and how to notify the ICO about a security breach. In summary, the guidance discusses the following obligations:
- Notification to the ICO that a personal data breach has occurred must be made within 24 hours of becoming aware of the basic facts. Full details must be provided as soon as possible.
- Organisations in the telecoms and communications sectors are affected.
- If the breach is likely to adversely affect individuals, a notification must also be made to those individuals without undue delay.
- A log of any breaches must be kept, and should be submitted to the ICO on a monthly basis.
Relevant personal data breaches
The obligations of PECR and the Regulation to notify within 24 hours fall upon organisations providing publicly available electronic communications services. In essence, these are service providers that allow members of the public to send electronic messages, for example telecoms providers and internet service providers. If an organisation is responsible for the delivery of only part of such a service and does not have a direct contractual relationship with members of the public then it does not have to notify the ICO of a personal data breach. However, such organisations must immediately notify the organisation that does have the direct contractual relationship with members of the public (and then that organisation must notify the ICO in accordance with PECR and the Regulation).
If any personal data is accidentally lost, corrupted or disclosed, or if someone accesses it or passes it on without proposer authorisation there will be a personal data breach. Importantly, there is no threshold for how serious the breach must be; service providers must notify all breaches.
Notifying the ICO
The Regulation’s most significant impact is the requirement on service providers to notify the ICO no later than 24 hours after the breach is detected. Detection is deemed to occur when the service provider has acquired sufficient awareness that a security incident has happened that led to personal data being compromised. In other words, as soon as service providers have enough information to confirm that there has been a breach and confirm some basic facts they must notify the ICO.
The ICO does accept that in many cases service providers will need longer than 24 hours to fully investigate the security incident. In such cases, service providers must still make the initial notification containing certain information only within 24 hours, essentially to inform the ICO that there has been a breach. The service providers must then follow up with a second notification to provide further information as soon as possible and, in any event, not more than three days after the initial notification. If a service provider is unable to comply with these timescales, it will be required to submit a reasoned justification to the ICO. Although it is yet to be seen what justifications will be acceptable, current guidance from the ICO does expect the investigation into the breach to be prioritised as a matter of urgency. In any event, the ICO would not expect an investigation to take longer than two weeks.
The ICO provides a secure security breach notification web form for service providers to notify the ICO of breaches, which also sets out the information that must be included in the notification.
Where a breach is likely to adversely affect the personal data or privacy of an individual (a customer of the service provider), the service provider must also notify that individual of the breach.
Whether the breach is likely to adversely affect individuals is primarily a decision for the service provider. In making such determination, the service provider must take into account the nature and content of the personal data, the likely harm that could be caused to the individual and the circumstances of the breach. For example, where the breach includes any sensitive personal data or intrusive data such as financial data, or where the disclosure could result in distress, humiliation or damage to reputation it may be more likely to have an adverse effect on a person.
Where such a notification to customers is to be made it must be made without undue delay and must include certain information set out by the ICO. (Full details are contained in the ICO guidance).
The ICO does not provide a standard form that service providers must use to notify affected individuals. However, service providers must use clear and easily understandable language, and in a format that ensures prompt receipt of information and appropriate security. Service providers must also ensure that the notification is not combined with a communication on another topic and are expressly prohibited from using the notification as an opportunity to promote or advertise new or additional services.
Security breach log
Service providers are also required to keep a log of security breaches which details the facts surrounding the breach, the effects of the breach and the remedial action taken.
The ICO has produced a template log to help service providers record the information needed. To ensure that all breaches have been properly notified to the ICO, the ICO recommends that completed logs are submitted to it on the first working day of each month. Although, strictly speaking, PECR does not require this monthly return, the ICO believes that this remains a useful exercise so that it can see that service providers are monitoring their security properly and taking their responsibilities seriously.
The intention of the new Regulation is to better regulate the telecoms and communications sectors. The new Regulation gives service providers additional clarity about how to meet their existing obligations under PECR and to reassure subscribers of such service providers that personal data breaches will be dealt with effectively. The new 24 hour deadline means that affected organisations cannot afford only to be reactive to personal data breaches; they must ensure they have in place appropriate internal procedures to facilitate compliance and allow the requisite information to be collected. Importantly, consideration will also need to be given as to whether and how quickly legal advice may need to be obtained.
The changes incorporated in the Regulation may not be an end to mandatory security breach notification. There are proposals under the new draft Data Protection Regulation currently being discussed that the security breach notification scheme set out in PECR and the Regulation should be expanded to further types of organisations, including online service providers such as those engaged in e-commerce retailing. There is a strong argument highlighted by the recent exposure by Facebook of the personal details of six million users that the scope should be extended to organisations other than simply telecoms providers and internet service providers. Although the new Regulation does not set a precedent for the proposals in the draft Data Protection Regulation, it may provide an insight into how a wider personal data breach notification system might work.
For further information, please contact Lee Rubin.