Handling security breaches from a German law perspective

The ever-increasing number of data security breaches coupled with the understandable reluctance of organisations to inform authorities and affected individuals of breaches, caused the German legislator to implement a legal data security breach reporting obligation in 2009. At the same time, regulators were given powers to fine organisations for failure to notify or for improper notification. These measures have made it easier for both regulators and data subjects affected by security breaches to minimise damage caused by security breaches. Perhaps more importantly, many organisations have enhanced their data security as a result. 

There is no general requirement to report data breaches under German law. The legal obligation is attached to specific types of personal data and differs depending on the applicable law. In particular, there are three different regulations under German law that relate to breach reporting obligations. This means whether a notification has to be made will depend on the type of personal data affected and the nature of the data controller.

Essentially, only breaches involving personal data considered as sensitive have to be notified. This includes information concerning racial or ethnic origin, political opinions, religious beliefs, health, criminal or administrative offences, bank accounts or credit cards as well as inventory and usage data of telecommunications or internet providers, such as name, address, phone number, password and information on time and scope of the services used…

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