GDPR Data Breach Reporting: Steps & Best Practices
The European Union’s General Data Protection Regulation (GDPR) sets strict standards for how organisations must handle data breaches involving personal information. GDPR data breach reporting is important for businesses for several reasons: maintaining compliance, protecting data subjects, and avoiding penalties.
We cover the key steps and best practices for reporting personal data breaches under GDPR, including timelines, risk assessments, notification procedures, and response planning.
Key Takeaways
• Data controllers must report personal data breaches to the relevant supervisory authority within 72 hours of becoming aware of the incident to protect data subjects’ rights and freedoms.
• When a breach poses a high risk to data subjects, organisations must notify affected individuals without undue delay, providing clear information on the breach and protective steps.
• Data processors must promptly inform data controllers of any security breaches, enabling timely reporting and effective breach management; not all breaches require external notification, but all must be documented internally.
Understanding GDPR Data Breach Reporting Requirements
Under the European Union’s General Data Protection Regulation, a personal data breach is defined as any security incident leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored, or otherwise processed. This broad definition covers a wide range of incidents, from malicious cyberattacks to human error or system failures.
Organisations acting as data controllers are primarily responsible for assessing breaches and reporting them to the competent supervisory authority. Data processors, on the other hand, must notify the data controller without undue further delay once they become aware of a breach. This collaborative approach ensures that breaches are identified and addressed swiftly.
Incidents covered by GDPR breach reporting include intentional attacks, such as ransomware and hacking, as well as unintentional events, such as accidental deletion or misconfiguration. The common factor is the involvement of personal data records, which triggers the need for assessment and possible notification.
The 72-Hour Notification Rule
One of the most important aspects of GDPR data breach reporting is the 72-hour notification rule. This rule requires data controllers to notify the relevant supervisory authority within 72 hours of becoming aware of a personal data breach. It is important to note that the clock starts ticking not when the breach occurs but when the organisation’s IT security team discovers or reasonably suspects a breach.
Key Points of the 72-Hour Notification Rule
| Aspect | Details |
| When the clock starts | Upon discovery or reasonable suspicion by the IT security team |
| Deadline | Notification to the supervisory authority within 72 hours of becoming aware |
| Phased Reporting | Allowed if all information is not immediately available, with reasons for any delay |
| Reporting Channels | Vary by supervisory authority; many provide online portals to facilitate notifications |
| Consequences of Missing the Deadline | Hefty fines and increased regulatory scrutiny |
Missing this deadline can lead to significant consequences, including hefty fines and increased regulatory scrutiny. However, GDPR allows for notifications to be submitted in phases if all information is not immediately available, provided that organisations do not delay unduly and give reasons for any delay.
Reporting channels vary depending on the supervisory authority competent for the organisation. Many authorities offer online portals to facilitate breach notification, making the process more straightforward.
Risk Assessment: Determining When Reporting Is Required
Not all breaches require notification to supervisory authorities or affected individuals. Organisations must conduct a thorough risk assessment to determine the severity and likelihood of adverse effects on data subjects.
Factors influencing risk levels include the sensitivity of the affected personal data (such as health or financial information), the number of data subjects concerned, and the potential adverse consequences, such as identity theft or discrimination.
High-risk scenarios, such as unauthorised disclosure of sensitive data or breaches affecting vulnerable populations, necessitate notifying both the supervisory authority and the affected data subjects. Conversely, breaches posing no or low risk may only require internal documentation as part of the breach management process.
Special consideration is given to breaches involving encrypted data. If encryption keys remain secure, the breach may not require notification, as the risk to data subjects is significantly mitigated.
Reporting to Supervisory Authorities
When a breach requires notification, organisations must identify the appropriate supervisory authority competent to handle the report. This is typically based on the location of the organisation’s main establishment within the European Union, following the one-stop-shop mechanism for cross-border processing.
Notifications must include detailed information about the breach’s nature, categories and approximate number of data subjects affected, likely consequences, and measures taken or proposed to mitigate the impact. Contact details for the data protection officer or another relevant contact point should also be provided.
Organisations are encouraged to submit initial reports, even if some information is incomplete, and to provide updates as further information becomes available. Supervisory authorities may request additional details or corrective actions, especially for large or sensitive breaches.
Notifying Affected Individuals
For breaches that pose a high risk to the rights and freedoms of data subjects concerned, organisations must notify affected individuals without undue delay. Notifications should be delivered through direct communication channels, such as email, SMS, or postal mail, using clear, plain language to ensure understanding.
When contact is not feasible or would be disproportionate, alternative methods like website notices or press releases may be used. The goal is to enable affected individuals to take timely protective measures, such as monitoring their accounts or changing passwords.
Notification content should explain the nature of the personal data breach, potential adverse effects, and recommended steps to mitigate harm. Providing support services and contact information helps affected individuals manage the impact effectively.
Data Controller vs Data Processor Responsibilities
Data processors have a critical role in GDPR data breach reporting by notifying data controllers immediately upon discovering a breach. This notification facilitates the data controller’s obligation to assess risks and notify supervisory authorities and affected data subjects as required.
Data controllers are ultimately responsible for managing the breach response, including risk assessment, breach notification, and coordination with third-party vendors or joint controllers. Contractual arrangements should clearly define notification procedures and timelines to ensure smooth collaboration.
Creating an Effective Breach Response Plan
An effective breach response plan is essential for meeting GDPR requirements and minimising the impact of data breaches. Such a plan should involve a core team comprising IT security experts, legal counsel, privacy officers, communications professionals, and executive leadership.
The plan should integrate robust breach-detection mechanisms and clear escalation protocols. Pre-drafted notification templates for supervisory authorities and affected individuals can streamline communication during an incident.
Regular testing, updates, and documentation of breach incidents and responses help maintain readiness and compliance. Coordinating breach response with broader incident response and business continuity plans ensures a comprehensive approach.
Common Breach Scenarios and Reporting Examples
Organisations may face a variety of breach scenarios, including ransomware attacks that affect data availability, email misconfigurations exposing customer data, healthcare data breaches involving sensitive medical records, lost or stolen devices with or without encryption, and breaches involving third-party service providers.
Understanding how to assess and report these incidents in accordance with GDPR requirements is vital for effective breach management.
Penalties and Consequences of Non-Compliance
Non-compliance with GDPR data breach reporting obligations can result in severe penalties, including fines up to €10 million or 2% of global annual revenue. Beyond financial consequences, organisations risk compliance orders, restrictions on data processing activities, reputational damage, loss of customer trust, civil liability, and increased regulatory scrutiny.
Maintaining a proactive approach to data security and breach reporting is essential to avoid these consequences and uphold data subjects’ rights and freedoms.
FAQ
What happens if we discover additional affected individuals after submitting the initial 72-hour notification?
Organisations should promptly notify the supervisory authority of any supplementary notifications to ensure ongoing compliance.
Can we use a third-party incident response service to submit breach notifications on our behalf?
Yes, but the data controller remains responsible for ensuring compliance with GDPR requirements.
How do we handle breach notifications for personal data processed under legitimate interests versus consent?
Notification obligations apply regardless of the legal basis for processing personal data.
What documentation must we maintain for breaches that don’t require external notification?
Organisations should keep records of breach circumstances, risk assessments, and remedial measures as part of accountability obligations.
Are there different notification requirements for special categories of personal data under Article 9?
Breaches involving sensitive data often require both supervisory authority and individual notifications due to the elevated risk involved.