Table of Contents
- What is a Personal Data Breach?
- Your Legal and Contractual Responsibilities
- Meeting the Legal Notification Requirements
- Communicating with Affected Individuals
- Using a Robust Data Breach Response Plan
- Taking Legal Advice and Reviewing Each Breach Case by Case
- Key Takeaways
- Frequently Asked Questions
Data breaches can often dominate news headlines and continue to affect organisations of all sizes and across every sector. As businesses increasingly rely on digital systems and handle growing volumes of personal data, the risk of an incident rises significantly. Even an innocent human mistake can quickly compromise personal data and lead to serious financial, legal and reputational consequences. Cyberattacks, lost devices or staff errors can all have damaging effects and lead to personal data breaches.
When a personal data breach occurs, your business must act swiftly to fulfil its obligations under UK data protection law and mitigate further risk. Being aware of your duties and prepared to respond effectively can help you comply with both your legal and contractual obligations. This article will explore key strategies for how your business can understand, manage and respond to a personal data breach.
What is a Personal Data Breach?
You should fully understand what a personal data breach is and how it can arise. Under the UK GDPR, a data breach occurs when a security incident results in the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data. This definition can cover both deliberate and accidental incidents.
A breach might occur if you send an email to the wrong person, compromising an individual’s personal data, lose a laptop containing client records, or experience a cyberattack that exposes information. As such, there are a range of scenarios where a breach can arise.
Your Legal and Contractual Responsibilities
A key initial step is to educate yourself and your business on your status and duties. Your business should first establish whether it acts as a data controller or a data processor. This distinction is fundamental, as it will determine your legal responsibilities both when handling personal data and responding to data breaches.
Data Processors
If you are a data processor, on the other hand, you process personal data on behalf of a controller. When a personal data breach occurs, you must inform your controller client without undue delay, and your contract terms with the controller may specify stringent timeframes for notifying them. The controller has only seventy-two hours from becoming aware of a reportable breach to notify the ICO, so time is critical.
Some contracts require you to report to the controller immediately. Therefore, you should carefully review your existing data processing agreements to know when to report a breach to the controller. When you are negotiating new data processing contracts, ensure that any breach reporting timelines requested by the controller are realistic and that your internal processes enable you to meet them. If not, you could also fall in breach of contract.
Continue reading this article below the formMeeting the Legal Notification Requirements
If your business acts as a controller and a breach is likely to risk individuals’ rights and freedoms, you must notify the ICO within seventy-two hours of becoming aware of it. The seventy-two-hour period begins as soon as you know a breach has occurred – even if you are still gathering details. Deciding to report a breach can be complex, as it requires a range of considerations, including the type of data compromised and the likely harm that could arise.
This factsheet outlines the steps for notifying the ICO and affected individuals about personal data breaches.
Communicating with Affected Individuals
If the breach is likely to result in a high risk to individuals’ rights and freedoms, then you must also inform those affected without undue delay. You should communicate clearly and in plain language to describe what happened, what personal data was affected and what steps you have taken to contain the incident. It is important to provide practical advice to help individuals protect themselves, such as guiding them on changing passwords or monitoring their financial accounts as necessary.
Using a Robust Data Breach Response Plan
Policy and planning documentation can help your compliance. Your business should establish and maintain a written breach response plan that sets out how you identify, assess and respond to personal data breaches. The plan should assign responsibility to key staff members, set internal escalation processes and explain how to communicate externally.
You should regularly test your breach response plan to ensure it is practical and effective in helping you comply with your obligations.
A clear and robust plan can help your business to respond quickly, comply with reporting deadlines and limit potential harm to individuals and your business reputation.
Taking Legal Advice and Reviewing Each Breach Case by Case
Each data breach is unique, and your business must assess each breach individually on a case-by-case basis. You should consider the type and sensitivity of the data involved, the number of people affected, and the likelihood of harm occurring when deciding whether a breach is reportable. Legal advice can help you determine whether the breach meets the threshold for ICO notification and whether individuals need to be informed.
If you are uncertain about reporting obligations, you should seek advice from a data protection lawyer immediately. Reporting a notifiable breach too late or failing to report it can result in significant penalties and reputational damage.
After handling a data breach incident, you should also review what went wrong, identify how to prevent a recurrence and document your corrective actions. Doing this can strengthen your compliance framework, help demonstrate accountability and hopefully help reduce future risks. A data protection lawyer can work with you to guide you on data security rules under the UK GDPR, so you can consider your obligations and how you take steps to prevent future breaches.
Key Takeaways
Data breaches can occur in any organisation, and your response is crucial in helping to manage the risks and consequences. You should understand what constitutes a personal data breach, determine whether you act as a controller or processor to know your duties, and ensure compliance with your legal or contractual obligations, depending on your role. Maintaining a comprehensive breach response plan, regularly training staff and seeking urgent legal advice will help your business comply with its obligations and reduce risk.
If you need support with handling a data breach, our experienced data, privacy and IT lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
A robust and comprehensive data breach plan can help your business respond quickly when an incident occurs. It can set out who takes responsibility, how to assess the breach and how to communicate with the ICO and affected individuals where necessary.
Yes, but processors report breaches differently from controllers. If you are a processor and experience a personal data breach, you must inform the controller without undue delay. The controller will then proceed to determine whether the breach must be reported to the ICO or to the affected individuals. Your contract with the relevant controller may specify stricter timelines – so you should review them carefully and ensure your procedures allow you to meet these deadlines.
We appreciate your feedback – your submission has been successfully received.
