Data breach
If data protection rules are violated, for example by a hacker attack in which personal data was stolen, companies must report this to the responsible data protection authority within 72 hours in accordance with the General Data Protection Regulation. Such a report must include a description of the breach and its possible consequences as well as the company’s response to the breach.
Data subjects must be informed immediately if a violation of data protection involves a high risk for their personal rights and freedoms. What exactly represents a high risk is not explicitly described in the General Data Protection Regulation.
However, there are also exceptions to companies’ reporting obligations:
- Notification to the supervisory authority is not required if the data breach does not lead to a risk for the rights and freedoms of data subjects.
- Notification to the data subjects is not required if the company has already taken appropriate security measures against data breaches or if measures have subsequently been taken to minimise the risk for the data subjects.
If a notification to data subjects would only be possible with a disproportionate effort, companies are required to inform consumers of the data protection violation in a publicly available announcement.
In Germany, the Federal Data Protection Act provides for a further exception to the obligation to notify consumers: If a notification of a data breach would contain secret information, a report is not required unless the interests of the parties concerned outweigh the secrecy obligations.
Article 33 GDPR (Notification of a personal data breach to the supervisory authority)
1. In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the supervisory authority competent in accordance with Article 55, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where the notification to the supervisory authority is not made within 72 hours, it shall be accompanied by reasons for the delay.
2. The processor shall notify the controller without undue delay after becoming aware of a personal data breach.
3. The notification referred to in paragraph 1 shall at least:
(a) describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
(b) communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;
(c) describe the likely consequences of the personal data breach;
(d) describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
4. Where, and in so far as, it is not possible to provide the information at the same time, the information may be provided in phases without undue further delay.
5. The controller shall document any personal data breaches, comprising the facts relating to the personal data breach, its effects and the remedial action taken. That documentation shall enable the supervisory authority to verify compliance with this Article.
Source: Regulation (EU) 2016/679 (see also recitals 85, 87 and 88)
Article 34 GDPR (Communication of a personal data breach to the data subject)
1. 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.
2. 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 (d) of Article 33(3).
3. The communication to the data subject referred to in paragraph 1 shall not be required if any of the following conditions are met:
(a) 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;
(b) 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;
(c) 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.
4. 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.
Source: Regulation (EU) 2016/679 (see also recitals 86, 87 and 88)
Section 29 BDSG (Rights of the data subject and powers of the supervisory authorities in the case of secrecy obligations)
(1) In addition to the exceptions in Article 14 (5) of Regulation (EU) 2016/679, the obligation to provide information to the data subject according to Article 14 (1) to (4) of Regulation (EU) 2016/679 shall not apply as far as meeting this obligation would disclose information which by its nature must be kept secret, in particular because of overriding legitimate interests of a third party. The right of access according to Article 15 of Regulation (EU) 2016/679 shall not apply as far as access would disclose information which by law or by its nature must be kept secret, in particular because of overriding legitimate interests of a third party. In addition to the exception in Article 34 (3) of Regulation (EU) 2016/679, the obligation to inform the data subject of a personal data breach according to Article 34 of Regulation (EU) 2016/679 shall not apply as far as meeting this obligation would disclose information which by law or by its nature must be kept secret, in particular because of overriding legitimate interests of a third party. By derogation from the exception pursuant to the third sentence, the data subject pursuant to Article 34 of Regulation (EU) 2016/679 shall be informed if the interests of the data subject outweigh the interest in secrecy, in particular taking into account the threat of damage.
(2) If in the context of a client-lawyer relationship the data of third persons are transferred to persons subject to a legal obligation of professional secrecy, the transferring body shall not be obligated to inform the data subject according to Article 13 (3) of Regulation (EU) 2016/679 unless the data subject has an overriding interest in being informed.
(3) The supervisory authorities shall not have the investigative powers according to Article 58 (1) (e) and (f) of Regulation (EU) 2016/679 with regard to the persons listed in Section 203 (1), (2a) and (3) of the Criminal Code or their processors as far as exercising these powers would violate these persons’ obligations to secrecy. If in the context of an investigation a supervisory authority becomes aware of data subject to an obligation of secrecy as referred to in the first sentence, the obligation of secrecy shall also apply to the supervisory authority.
