Reporting an SME data breach under the GDPR - How, when and why.
A data breach is not only costly for your organisation in terms of the time spent to rectify a breach and the reputational damage caused, but it can also be costly from a regulatory perspective when you fail to notify. As an SME, it is important that your organisation understands when to notify a data breach under the UK General Data Protection Regulation (GDPR), to whom and how to notify it.
Not sure what counts as a data breach? Read our previous blog post below to find out!
When should data subjects be notified?
Communication of personal data breaches to data subjects is governed by Article 34 GDPR which states that your organisation should report a data breach without undue delay if there is ‘a high risk to the rights and freedoms of natural persons’.
Recital 85 of the GDPR clarifies this to mean physical, material, or non-material damage to natural persons, if a breach is not addressed in a timely manner, such as:
loss of control over their personal data or limitation of their rights
identity theft or fraud
unauthorised reversal of pseudonymisation
damage to reputation
loss of confidentiality of personal data protected by professional secrecy or
any other significant economic or social disadvantage to the natural person concerned.
The loss of bank details, the sharing of private information related to someone’s address or information that can allow someone else to steal an identity are all examples of risks to a person's rights and freedoms.
However, the Information Commissioner's Office (ICO) suggests that the threshold for reporting to data subjects is much higher than that of reporting to the ICO and this is partly because you may cause unnecessary worry if you notify data subjects of minor issues, especially when the breach is unlikely to cause a high risk to their safety or freedom.
In fact, too many notifications may cause data subjects to become complacent and disregard it when an important one asks them to act in securing their personal data rights.
Generally, the GDPR notes that notification to data subjects is not required when:
the controller has implemented appropriate technical and organisational protection measures which were applied to the personal data affected by the data breach, such as encryption;
the controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects is no longer likely to materialise; or
it would involve disproportionate effort - in such a case, there should instead be a public communication or similar measure whereby the data subjects are informed in an equally effective manner.
How to notify a data breach to data subjects
In case you do need to notify data subjects, the GDPR notes that the communication to data subjects:
should be in clear and plain language as to what the breach was;
should contain the name and contact details of the data protection officer (DPO) or other contact within the organisation that can give them more information and answer their questions; and
should describe the measures taken or will be taken by your organisation as the data controller to address the personal data breach and measures to mitigate possible adverse side effects, if there is likely to be any.
When should the ICO be notified?
The threshold for reporting a personal data breach to the ICO is much lower than that of data subjects but this does not mean that every data breach needs to be notified. You should only notify if it poses a risk to people and the likelihood and severity of the risk is to people’s rights and freedoms, following the breach. After this assessment, if it’s likely there will be a risk then you must notify the ICO.
If you are reporting a breach, it should be reported to the ICO without undue delay and within the first 72 hours of the breach, starting from when your organisation becomes aware of it. Remember, a failure to notify the ICO of a relevant data breach may lead to a fine of up to EUR 10m or 2% of your annual global turnover, whichever is higher.
Click here for an assessment of whether you should report to the ICO.
How to notify a data breach to the ICO
Call the ICO on 0303 123 1113. Alternatively, if you think you have dealt with the breach appropriately, you can notify the ICO online by clicking on the image below.
Click the above to go to the ICO website to download the word document.
Below are a list of things to think about:
Describe the situation
Describe how the incident occurred
How did the organisation discover the breach?
What preventive measures were already in place before the breach?
Was the breach caused by a cyber incident?
What time did the breach happen?
What time was the breach discovered?
What types of personal data were involved in the breach?
How many personal data records were involved?
How many data subjects will be affected?
What groups of data subjects are likely to be affected?
Is the breach likely to result in a high risk to data subjects?
Has the staff member involved in the breach been trained on data protection regulations in the last two years?
Was there a delay in reporting the breach and if so why?
What actions did you take due to the breach?
What actions have you taken to remedy the breach?
What processes or procedures will you implement in the future to prevent a recurrence?
Have you notified data subjects of this breach?
Who is your organisation’s Data Protection Officer (DPO)?
How to prevent a data breach
The Privasee dashboard is a quick and simple way for your organisation to prevent a data breach and in a worst case scenario, keep on top of data breaches. With features that help you record the time and date of a personal data breach and the person responsible for dealing with them, it can better help you manage your overall privacy risks with increased oversight.
Preventing data breaches need not be costly nor a headache with the right tools.
If you require assistance with notifying a data breach, please contact a member of the Privasee team at email@example.com and receive a free consultation.
This article does not constitute legal advice in any form and only seeks to break down some of the main points set out by publicly available sources such as the ICO.
Further information and Sources
Article 34 GDPR, Recital 85 GDPR: https://www.legislation.gov.uk/eur/2016/679/contents