Guidelines 01/2021 on Examples regarding Personal Data Breach Notification

December 14th, 2021 | Posted by Claude-Etienne Armingaud in Data Breach | Europe | Guidelines - (0 Comments)

Adopted on 14 December 2021 – Version 2.0

Version history

Version 1.014 January 2021Adoption of the Guidelines for public consultation
Version 2.014 December 2021Adoption of the Guidelines after public consultation

1. INTRODUCTION

  1. The GDPR introduces, in certain cases, the requirement for a personal data breach to be notified to the competent national supervisory authority (hereinafter “SA”) and to communicate the breach to the individuals whose personal data have been affected by the breach (Articles 33 and 34).
  2. The Article 29 Working Party already produced a general guidance on data breach notification in October 2017, analysing the relevant Sections of the GDPR (Guidelines on Personal data breach notification under Regulation 2016/679, WP 250) (hereinafter “Guidelines WP250”). However, due to its nature and timing, this guideline did not address all practical issues in sufficient detail. Therefore, the need has arisen for a practice-oriented, case-based guidance, that utilizes the experiences gained by SAs since the GDPR is applicable.
  3. This document is intended to complement the Guidelines WP 250 and it reflects the common experiences of the SAs of the EEA since the GDPR became applicable. Its aim is to help data controllers in deciding how to handle data breaches and what factors to consider during risk assessment.
  4. As part of any attempt to address a breach the controller and processor should first be able to recognize one. The GDPR defines a “personal data breach” in Article 4(12) as “a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed”.
  5. In its Opinion 03/2014 on breach notification and in its Guidelines WP 250, WP29 explained that breaches can be categorised according to the following three well-known information security principles:
  • “Confidentiality breach” – where there is an unauthorised or accidental disclosure of, or access to, personal data;
  • “Integrity breach” – where there is an unauthorised or accidental alteration of personal data; and
  • “Availability breach” – where there is an accidental or unauthorised loss of access to, or destruction of, personal data.
  1. A breach can potentially have a range of significant adverse effects on individuals, which can result in physical, material, or non-material damage. The GDPR explains that this can include loss of control over their personal data, limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, and loss of confidentiality of personal data protected by professional secrecy. It can also include any other significant economic or social disadvantage to those individuals. One of the most important obligation of the data controller is to evaluate these risks to the rights and freedoms of data subjects and to implement appropriate technical and organizational measures to address them.
  2. Accordingly, the GDPR requires the controller to:
  1. Data breaches are problems in and of themselves, but they may be also symptoms of a vulnerable, possibly outdated data security regime, they may also indicate system weaknesses to be addressed. As a general truth, it is always better to prevent data breaches by preparing in advance, since several consequences of them are by nature irreversible. Before a controller can fully assess the risk arising from a breach caused by some form of attack, the root cause of the issue should be identified, in order to identify whether any vulnerabilities that gave rise to the incident are still present, and are still therefore exploitable. In many cases the controller is able to identify that the incident is likely to result in a risk, and is therefore to be notified. In other cases the notification does not need to be postponed until the risk and impact surrounding the breach has been fully assessed, since the full risk assessment can happen in parallel to notification, and the information thus gained may be provided to the SA in phases without undue further delay.
  2. The breach should be notified when the controller is of the opinion that it is likely to result in a risk to the rights and freedoms of the data subject. Controllers should make this assessment at the time they become aware of the breach. The controller should not wait for a detailed forensic examination and (early) mitigation steps before assessing whether or not the data breach is likely to result in a risk and thus should be notified.
  3. If a controller self-assesses the risk to be unlikely, but it turns out that the risk materializes, the competent SA can use its corrective powers and may resolve to sanctions
  4. Every controller and processor should have plans, procedures in place for handling eventual data breaches. Organisations should have clear reporting lines and persons responsible for certain aspects of the recovery process.
  5. Training and awareness on data protection issues for the staff of the controller and processor focusing on personal data breach management (identification of a personal data breach incident and further actions to be taken, etc.) is also essential for the controllers and processors. This training should be regularly repeated, depending on the type of the processing activity and size of the controller, addressing latest trends and alerts coming from cyberattacks or other security incidents.
  6. The principle of accountability and the concept of data protection by design could incorporate analysis that feeds into a data controller’s and data processor’s own “Handbook on Handling Personal Data Breach” that aims to establish facts for each facet of the processing at each major stage of the operation. Such a handbook prepared in advance would provide a much quicker source of information to allow data controllers and data processors to mitigate the risks and meet the obligations without undue delay. This would ensure that if a personal data breach was to occur, people in the organisation would know what to do, and the incident would more than likely be handled quicker than if there were no mitigations or plan in place.
  7. Though the cases presented below are fictitious, they are based on typical cases from the SA’s collective experience with data breach notifications. The analyses offered relate explicitly to the cases under scrutiny, but with the goal to provide assistance for data controllers in assessing their own data breaches. Any modification in the circumstances of the cases described below may result in different or more significant levels of risk, thus requiring different or additional measures. These guidelines structure the cases according to certain categories of breaches (e.g. ransomware attacks). Certain mitigating measures are called for in each case when dealing with a certain category of breaches. These measures are not necessarily repeated in each case analysis belonging to the same category of breaches. For the cases belonging to the same category only the differences are laid out. Therefore, the reader should read all cases relevant to relevant category of a breach to identify and distinguish all the correct measures to be taken.
  8. The internal documentation of a breach is an obligation independent of the risks pertaining to the breach, and must be performed in each and every case. The cases presented below try to shed some light on whether or not to notify the breach to the SA and communicate it to the data subjects affected.

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Guidelines 08/2020 on the targeting of social media users

September 10th, 2020 | Posted by Claude-Etienne Armingaud in Europe | Guidelines | Privacy - (0 Comments)

Version 1.0 dated 02 September 2020 adopted for public consultation. Go to the finalized version.
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The European Data Protection Board

Having regard to Article 70(1)(e) of Regulation 2016/679/EU of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

HAS ADOPTED THE FOLLOWING GUIDELINES

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Guidelines 07/2020 on the concepts of controller and processor in the GDPR v 1.0

September 10th, 2020 | Posted by Claude-Etienne Armingaud in Europe | Guidelines | Privacy - (0 Comments)

Version 1.0 dated 06 September 2020 adopted for public consultation. Go to the finalized version.
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EXECUTIVE SUMMARY

The concepts of controller, joint controller and processor play a crucial role in the application of the General Data Protection Regulation 2016/679 (GDPR), since they determine who shall be responsible for compliance with different data protection rules, and how data subjects can exercise their rights in practice. The precise meaning of these concepts and the criteria for their correct interpretation must be sufficiently clear and consistent throughout the European Economic Area (EEA).

The concepts of controller, joint controller and processor are functional concepts in that they aim to allocate responsibilities according to the actual roles of the parties and autonomous concepts in the sense that they should be interpreted mainly according to EU data protection law.

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European Data Protection Board Clarifies the Interplay Between the EU Clinical Trials Regulation and the General Data Protection Regulation

April 8th, 2019 | Posted by Claude-Etienne Armingaud in eHealth | Guidelines | Privacy - (0 Comments)

On 23 January 2019, the EU Data Protection Board (“EDPB” – the gathering of all European Union (EU) data protection authorities) adopted opinion no. 3/2019 (the “Opinion”) on the interplay between the Clinical Trials Regulation no. 536/2014 “CTR”) and the General Data Protection Regulation (“GDPR”). Anticipating the application of CTR (currently expected to occur in 2020) following the implementation of the EU portal and the EU database of the European Medicines Agency, the Opinion provides clarification on (i) the different legal bases for the processing of personal data operations related to a specific clinical trial, from commencement of the clinical trial until the deletion of personal data collected during the clinical trial (“Primary Use”); and (ii) the further use of the same personal data set for any other scientific purposes (“Secondary Use”). Without establishing a legal basis, no one can process the personal data needed to run a clinical trial or to use the personal data for other research.

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Guidelines on transparency under Regulation 2016/679

April 11th, 2018 | Posted by Claude-Etienne Armingaud in Europe | Guidelines | Privacy - (0 Comments)

WP260 rev.01 – Adopted on 29 November 2017 – As last Revised and Adopted on 11 April 2018

Introduction

  1. These guidelines provide practical guidance and interpretative assistance from the Article 29 Working Party (WP29) on the new obligation of transparency concerning the processing of personal data under the General Data Protection Regulation (the “GDPR”). Transparency is an overarching obligation under the GDPR applying to three central areas: (1) the provision of information to data subjects related to fair processing; (2) how data controllers communicate with data subjects in relation to their rights under the GDPR; and (3) how data controllers facilitate the exercise by data subjects of their rights. Insofar as compliance with transparency is required in relation to data processing under Directive (EU) 2016/680, these guidelines also apply to the interpretation of that principle. These guidelines are, like all WP29 guidelines, intended to be generally applicable and relevant to controllers irrespective of the sectoral, industry or regulatory specifications particular to any given data controller. As such, these guidelines cannot address the nuances and many variables which may arise in the context of the transparency obligations of a specific sector, industry or regulated area. However, these guidelines are intended to enable controllers to understand, at a high level, WP29’s interpretation of what the transparency obligations entail in practice and to indicate the approach which WP29 considers controllers should take to being transparent while embedding fairness and accountability into their transparency measures.
  2. Transparency is a long established feature of the law of the EU. It is about engendering trust in the processes which affect the citizen by enabling them to understand, and if necessary, challenge those processes. It is also an expression of the principle of fairness in relation to the processing of personal data expressed in Article 8 of the Charter of Fundamental Rights of the European Union. Under the GDPR (Article 5(1)(a)), in addition to the requirements that data must be processed lawfully and fairly, transparency is now included as a fundamental aspect of these principles. Transparency is intrinsically linked to fairness and the new principle of accountability under the GDPR. It also follows from Article 5.2 that the controller must always be able to demonstrate that personal data are processed in a transparent manner in relation to the data subject. Connected to this, the accountability principle requires transparency of processing operations in order that data controllers are able to demonstrate compliance with their obligations under the GDPR.
  3. In accordance with Recital 171 of the GDPR, where processing is already under way prior to 25 May 2018, a data controller should ensure that it is compliant with its transparency obligations as of 25 May 2018 (along with all other obligations under the GDPR). This means that prior to 25 May 2018, data controllers should revisit all information provided to data subjects on processing of their personal data (for example in privacy statements/ notices etc.) to ensure that they adhere to the requirements in relation to transparency which are discussed in these guidelines. Where changes or additions are made to such information, controllers should make it clear to data subjects that these changes have been effected in order to comply with the GDPR. WP29 recommends that such changes or additions be actively brought to the attention of data subjects but at a minimum controllers should make this information publicly available (e.g. on their website). However, if the changes or additions are material or substantive, then in line with paragraphs 29 to 32 below, such changes should be actively brought to the attention of the data subject.
  4. Transparency, when adhered to by data controllers, empowers data subjects to hold data controllers and processors accountable and to exercise control over their personal data by, for example, providing or withdrawing informed consent and actioning their data subject rights. The concept of transparency in the GDPR is user-centric rather than legalistic and is realised by way of specific practical requirements on data controllers and processors in a number of articles. The practical (information) requirements are outlined in Articles 12-14 of the GDPR. However, the quality, accessibility and comprehensibility of the information is as important as the actual content of the transparency information, which must be provided to data subjects.
  5. The transparency requirements in the GDPR apply irrespective of the legal basis for processing and throughout the life cycle of processing. This is clear from Article 12 which provides that transparency applies at the following stages of the data processing cycle:

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Guidelines on the right to data portability

April 5th, 2017 | Posted by Claude-Etienne Armingaud in Europe | Guidelines | Privacy - (0 Comments)

Adopted on 13 December 2016 – As last Revised and adopted on 5 April 2017

Executive summary

Article 20 of the GDPR creates a new right to data portability, which is closely related to the right of access but differs from it in many ways. It allows for data subjects to receive the personal data that they have provided to a controller, in a structured, commonly used and machine-readable format, and to transmit those data to another data controller. The purpose of this new right is to empower the data subject and give him/her more control over the personal data concerning him or her.

Since it allows the direct transmission of personal data from one data controller to another, the right to data portability is also an important tool that will support the free flow of personal data in the EU and foster competition between controllers. It will facilitate switching between different service providers, and will therefore foster the development of new services in the context of the digital single market strategy.

This opinion provides guidance on the way to interpret and implement the right to data portability as introduced by the GDPR. It aims at discussing the right to data portability and its scope. It clarifies the conditions under which this new right applies taking into account the legal basis of the data processing (either the data subject’s consent or the necessity to perform a contract) and the fact that this right is limited to personal data provided by the data subject. The opinion also provides concrete examples and criteria to explain the circumstances in which this right applies. In this regard, WP29 considers that the right to data portability covers data provided knowingly and actively by the data subject as well as the personal data generated by his or her activity. This new right cannot be undermined and limited to the personal information directly communicated by the data subject, for example, on an online form.

As a good practice, data controllers should start developing the means that will contribute to answer data portability requests, such as download tools and Application Programming Interfaces. They should guarantee that personal data are transmitted in a structured, commonly used and machine-readable format, and they should be encouraged to ensure the interoperability of the data format provided in the exercise of a data portability request.

The opinion also helps data controllers to clearly understand their respective obligations and recommends best practices and tools that support compliance with the right to data portability. Finally, the opinion recommends that industry stakeholders and trade associations work together on a common set of interoperable standards and formats to deliver the requirements of the right to data portability.

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