GDPR Articles With Commentary & EU Case Laws by Adv. Prashant Mali (red seas under red skies txt) 📕

Description of the likely consequences of the personal data breach (Article 33 (3), c));

Description of the measures taken or propose to be taken by the controller to address the personal data breach (Article 33 (3), d)).

Finally, the controller must keep track of each breach indicating its context, its effects and the measures taken to remedy. This documentation will enable the supervisory authority to check compliance with Article 33.

The Directive did not provide for an obligation of notification in the event of a personal data breach. On the other hand, a notification mechanism had been set up by the Directive 2002/58/EC on privacy and electronic communications, included into the Regulation No. 611/2013 on measures relating to the notification of personal data breaches.

Art. 34 GDPR Communication of a personal data breach to the data subject

When the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall communicate the personal data breach to the data subject without undue delay.

The communication to the data subject referred to in paragraph 1 of this Article shall describe in clear and plain language the nature of the personal data breach and contain at least the information and measures referred to in points (b), (c) and

of Article 33(3).

The communication to the data subject referred to in paragraph 1 shall not be required if any of the following conditions are met:

The controller has implemented appropriate technical and organisational protection measures, and those measures were applied to the personal data affected by the personal data breach, in particular those that render the personal data unintelligible to any person who is not authorised to access it, such as encryption;

The controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects referred to in paragraph 1 is no longer likely to materialise;

It would involve disproportionate effort. In such a case, there shall instead be a public communication or similar measure whereby the data subjects are informed in an equally effective manner.

If the controller has not already communicated the personal data breach to the data subject, the supervisory authority, having considered the likelihood of the personal data breach resulting in a high risk, may require it to do so or may decide that any of the conditions referred to in paragraph 3 are met.

Suitable Recitals

Notification of data subjects in case of data breaches; (87) Promptness of reporting / notification; (88) Format and procedures of the notification.

COMMENTARY:

Unlike the notification to the supervisory authority (see Article 33), the final version of the Regulation only requires the controller to notify the data subject of data breaches that are likely to expose individuals to a high risk to their rights and freedoms.

Article 34 also defines the content of the notification to the data subject, which is also very close to the notification under Article 33, to which it is largely referred (see Art. 34 (2)). The final version of the regulation states that the communication must be made in a clear and simple language.

The period is a bit different from the notification to the supervisory authority since Article 34 (1) in fine indicates only that it must be done "without undue delay". The idea is that data subjects should without delay take any measures that are necessary to stop or mitigate the negative effects that may arise from the data breach (see recital 85). Article 34 (3) provides, however, for various exceptions to the notification to the data subjects.

If the controller has implemented appropriate technical and organisational protection measures, and those measures were applied to the personal data affected by the personal data breach, in particular those that render the personal data unintelligible to any person who is not authorised to access it, such as encryption (a);

Or if the controller has taken subsequent measures, which ensure that the high risk to the rights and freedoms of data subjects referred to in, paragraph 1 is no longer likely to materialize (b);

Or it would involve disproportionate effort. In such a case, there shall instead be a public communication or similar measure whereby the data subjects are informed in an equally effective manner (c).

Initially, according to the second proposed version of the Regulation, the notification was not necessary if it would create risk to affect an important public interest. This exception that, in our opinion, allowed a too large space for maneuvering to the controller was, however, removed in the final version of the Regulation. Ultimately, the final version of the Regulation adds a fourth paragraph to Article 34 granting to the supervisory authority the power to require the controller to notify the data subjects, taking into account the likelihood for the breach to result in a high risk for them. This provision also recognizes to the supervisory authority the power to evaluate whether the notification to the data subject is necessary, in view of the exceptions provided for in Article 34 (3) of the Regulation.

The Directive did not provide for an obligation of notification in the event of a personal data breach. On the contrary, the system set up by the Directive

2002/58/EC on privacy and electronic communications, included in Regulation No. 611/2013 on measures relating to the notification of personal data breaches.

A data controller must notify the competent supervisory authority of a personal data breach without undue delay and where feasible not less than 72 hours after the data controller becomes aware of the personal data breach, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Art. 33(1).

When a data controller assesses the risk that is likely to result from a breach, the data controller should consider a combination of the severity of the potential impact on the rights and freedoms of individuals and the likelihood of these occurring. As noted in the Guidelines, the European Union Agency for Network and Information Security (ENISA) has issued recommendations for a methodology of assessing the severity of a breach, which data controllers and data processors may find useful when designing their breach management response plans. The data controller should consider the following criteria when assessing the risk to individuals as a result of a breach:

The type of breach that has occurred;

The nature, sensitivity and volume of personal data;

The ease of identification of individuals;

The severity of consequences for individuals;

Special characteristics of the individual;

Special characteristics of the data controller; and

The number of affected individuals.

In the first notification, the data controller should inform the supervisory authority if the data controller does not have all the information required for reporting and subsequently will provide more details. Art. 33(4). If it is not possible to provide the information required for reporting at the same time, the information may be provided in phases without undue further delay. Id.

When the notification by the data controller to the supervisory authority is not made within 72 hours, it shall be accompanied by reasons for the delay, which is permissible if the data controller provides reasons for the delay. However, delayed notification should not be viewed as something that regularly takes place.

The information required for reporting includes the name and contact details of the data protection officer or other contact point where more information can be obtained and a description of:

The nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and of personal data records concerned;

The likely consequences of the personal data breach; and

The measures taken or proposed to be taken by the data controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects. Art. 33(3). In certain circumstances, where justified, and on the advice of law enforcement authorities, the data controller may delay communicating the breach to the affected individuals until such time as it would not prejudice such investigations. However, data subjects would still need to be promptly informed after this time. Recital 88.

A data controller must communicate the personal data breach to the data subjects without undue delay when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons and the data controller has not either:

Implemented appropriate technical and organizational protection measures which were applied to the personal data affected by the personal data breach and render the personal data unintelligible to any person who is not authorized to access it (e.g., encryption) or

Taken subsequent measures, which ensure that the high risk to the rights and freedoms of data subjects is no longer likely to materialize. Art. 34(1) and Art. 34(3). Where such communication of the personal data breach to the data subjects would involve disproportionate effort, there instead shall be a public communication or similar measure whereby the data subjects are informed in an equally effective manner.

The communication must describe in clear and plain language the nature of the personal data breach and include the name and contact details of the data protection officer or other contact point where more information can be obtained and a description of:

The likely consequences of the personal data breach; and

The measures taken or proposed to be taken by the data controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects. Art. 34(2) and Art. 33(3).

There is a high risk to the rights and freedoms of individuals where the breach may lead to physical, material or non-material damage for individuals whose data have been breached and such damage includes discrimination, identity theft or fraud, financial loss, damage to reputation, loss of control over personal data or limitation of rights, unauthorized reversal of Pseudonymisation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned.

Section 3: Data protection impact assessment and prior consultation Art. 35 GDPR Data protection impact assessments

Where a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data. A single assessment may address a set of similar processing operations that present similar high risks.

The controller shall seek the advice of the data protection officer, where designated, when carrying out a data protection impact assessment.

A data protection impact assessment referred to in paragraph 1 shall in particular be required in the case of:

A systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person;

Processing on a large scale of special categories of data referred to in Article 9(1), or of personal data relating to criminal convictions and offences referred to in Article 10; or

A systematic monitoring of a publicly accessible area on a large scale.

The supervisory authority shall establish and make public a list of the kind of processing operations, which are subject to the requirement for a data protection impact assessment pursuant to paragraph 1. The supervisory authority shall communicate those lists to the Board referred to in Article 68.

The supervisory authority may also establish and make public a list of the kind of processing operations for which no data protection impact assessment is required. The supervisory authority shall communicate those lists to the Board.

Prior to the adoption of the lists referred to in paragraphs 4 and 5, the competent supervisory authority shall apply the consistency mechanism referred to in Article 63 where such lists involve processing activities which are related to the offering of goods or services to data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the free movement of personal data within the Union.

The assessment shall contain at least:

A systematic description of the envisaged processing operations and the purposes of the processing, including, where applicable, the legitimate interest pursued by the controller;

An assessment of the necessity and proportionality of the processing operations in relation to the purposes;

An assessment of the risks to the rights and freedoms of data subjects referred to in paragraph 1; and

The measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation taking into account the rights and legitimate interests of data subjects and other persons concerned.

Compliance with approved codes of conduct referred to in Article 40 by the relevant controllers or processors shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.

Where appropriate, the controller shall seek the views of data subjects or their representatives on the intended processing, without prejudice to the protection of commercial or public interests or the security of processing operations.

Where processing pursuant to point (c) or (e) of Article 6(1) has a legal basis in Union law or in the law of the Member State to which the controller is subject, that law regulates the specific processing operation or set of operations in question, and a data protection impact assessment has already been carried out as part of a general impact assessment in the context of the adoption of that legal basis, paragraphs 1 to 7 shall not apply unless Member States deem it to be necessary to carry out such an assessment prior to processing activities.

Where necessary, the controller shall carry out a review to assess if processing is performed in