1. Identify the extent of the breach.
Regardless of how the breach was detected, one of the first things you’ll need to do is determine its extent. What’s the nature of the breach? What sort of information was disclosed, altered, deleted, etc.? What is the approximate number of data subjects concerned and the categories and approximate number of data records concerned?
Refer to your incident response plan to identify which personnel are responsible for breach discovery and analysis. Your incident response plan should also include potential consequences of a breach and mitigation strategies based on the type of information compromised. So, once you’re aware of a breach, begin following the mitigation strategies outlined in the plan. This might mean taking databases offline or blocking all remote access until you know the extent of the breach.
2. Identify to whom you need to report the breach.
While the GDPR introduces strict breach notification requirements, it’s worth noting that strong encryption can help maintain the integrity of your data should you experience a breach. It can also help you make the case that a breach is unlikely to be damaging to users since the data is unusable unless decrypted.
That said, any personal data breach, unless it “is unlikely to result in harm to the data subject,” is required to be reported to the supervisory authority within 72 hours of discovery (see Article 33).
In many cases, U.S. companies affected by the GDPR are service providers, acting on behalf of companies in the EU. If you fall into this category, you’re a data processor, and you would report a breach to the EU company with whom you’re doing business. That company would then be responsible for reporting the breach to the appropriate supervisory authority.
However, if you’re a data controller, i.e. your company “determines the purposes and means of the processing of personal data,” you are responsible for reporting directly to the regulatory body of each EU country with whom you do business. (See Article 4 for “controller” and “processor” definitions.)
Breaches are also required to be reported to data subjects “without undue delay” if “that personal data breach is likely to result in a high risk to the rights and freedoms of the natural person” (see Article 34).
However, if you are able to prove any of the following, you are NOT required to notify data subjects of a breach (according to Article 34):
- “the controller has implemented appropriate technical and organizational protection measures, and those measures were applied to the personal data affected by the personal data breach, in particular, those that render the personal data unintelligible to any person who is not authorized to access it, such as encryption;
- the controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects referred to in paragraph 1 is no longer likely to materialize;
- it would involve a disproportionate effort. In such a case, there shall instead be a public communication or similar measure whereby the data subjects are informed in an equally effective manner.”
Note: The above exceptions apply only to data subjects, NOT the supervisory authority.
Any breach must be reported to the supervisory authority unless it meets the exception noted in Article 33 (“unlikely to result in harm to the data subject”).
3. Report the correct information to appropriate people within the required timeframe.
The GDPR also specifies what information should be reported when notifying either the supervisory authority or data subjects of a breach. When reporting to the supervisory authority, your notification should (according to Article 33):
- “describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
- communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;
- describe the likely consequences of the personal data breach;
- describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.”
When notifying data subjects of a breach, the notification must “describe in clear and plain language the nature of the personal data breach,” (see Article 34). You must also adhere to items B, C, and D of Article 33 noted above.
Breach notifications must be handled transparently and clearly with both supervisory authorities and data subjects. Failure to do this not only makes you non-compliant with GDPR regulations but risks damaging your organization’s reputation.
Ensure the incident response plan includes breach communication principles, including the following:
- Center communication around facts, not speculation.
- Ensure information communicated is consistent.
- Provide customers an avenue to learn about the breach and inquire about their data.
As mentioned, breaches must be reported to supervisory authorities within 72 hours of discovery and to data subjects “without undue delay” (see Articles 33 and 34).
The breach notification requirements set forth by the GDPR present new and unique challenges. LBMC Information Security’s computer incident response services can help you plan and execute a GDPR-compliant incident response plan.
Contact us today to learn how we can help your organization prepare for all the requirements set forth by the GDPR.