Dealing with data security breaches — the future

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In January 2012, the European Commission unveiled its draft data protection Regulation (Regulation), intended to update and harmonise EU data protection law. Eighteen months later, the draft is still being hotly debated with the European Parliament currently considering more than 3000 suggested amendments to the draft. The Regulation has been described as the most lobbied legislation in EU history and few issues have caused more consternation than the proposals around dealing with data security breaches. 

Under the Regulation there would be mandatory reporting of data security breaches. Organisations would have to inform the relevant data protection authority (DPA) of a breach ‘without undue delay and, where feasible, not later than 24 hours of becoming aware of it’. In addition, they would then have to inform data subjects ‘without undue delay’ unless the relevant data protection authority were satisfied that the data was sufficiently protected from being accessed by an unauthorised user, for example, by encryption. Data processors would be subject to the still more onerous requirement to inform data controllers ‘immediately’ of any data security breach.

Most obviously, in the current draft there are no exceptions to the requirement to notify data security breaches to DPAs. This means that every security breach, no matter how insignificant, will, in theory, have to be reported. Not only would this place a huge administrative burden on organisations, the EU does not appear to have thought about how DPAs would process, much less act on this information. In addition, in order to comply with the time frames, data controllers are likely to have to provide incomplete notifications to be supplemented at a later date, thereby adding to the administrative burden for all concerned…

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