8 Things to Consider in a Data Breach Response

A data breach can lead to reputational damage, financial losses and much more. By effectively preventing and investigating data breaches in a timely manner, you can limit the damage to your organisation, and to the data subjects involved.

Here are 8 things to consider when dealing with a Data Breach:

Please note, the steps below are not necessarily linear, particularly in the initial response phase.

1. Be Prepared

• Know what data you have, where it is, what you do with it, who has access to it, and how it is protected.
  • Register of Processing Activity (RoPA) – DPC, Records of Processing Activities (RoPA) under Article 30 GDPR.
• Have a response plan in place.
• Train personnel.
  • Crucial to addressing a breach is to be able to recognise one. As is how to respond if you cause, find, or are informed about a potential breach.

A personal data breach is “a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored, or otherwise processed” (GDPR, A.4.12).

2. Act Quickly!

• Once you have identified / been notified of a potential breach, escalate immediately:
  • To the responsible person internally.
  • To the Data Controller, if you are a Processor.
• Mobilise your breach response team.
• Determine whether a breach has in fact occurred.
• Work to contain the incident.

3. Communicate with Relevant ‘Internal’ Stakeholders:

• The Data Protection Officer, where designated
  • For advice, information, and as a point of contact for DPA and data subjects.
• Relevant management team member(s) – ‘process’ owners.
• Third party processors, where necessary.

4. Establish the Facts

• Preliminary investigation – assess the situation. What has happened?
  • What assets have been compromised?
  • What data has been compromised?
  • Classify the breach
    • Is it Confidentiality, Integrity, Availability, or some combination of these?
  • Is personal data involved?
    • The Data Controller has 72 hours from becoming aware of a breach to notify the relevant Data Protection Authority (DPA) (GDPR A.33.1).
    • The European Data Protection Board (EDPB) considers that a data controller should be regarded as having become “aware” of a breach when it has established with “a reasonable degree of certainty that a security incident has occurred that has led to personal data being compromised”. EDPB Guidelines 9/2022 on personal data breach notification under GDPR, Version 2.0.

5. Assess the Risks

• Carry out an objective assessment of the impact (likelihood and severity) of the breach on the rights and freedoms of data subjects.

6. Communicate with External Stakeholders

• Notify the DPA
  • Only required if the breach is likely to result in a risk to the rights and freedoms of individuals (GDPR A.33.1).
    • This will be informed by your risk assessment.
  • If your breach affects individuals in more than one EU / EEA country, you only need to notify your Lead DPA.
  • Your notification to the DPA may be on a phased basis as you may not have all of the information within the 72 hour window.

• Notify the Data Subjects:
  • Not always required but must be done “without undue delay” if the breach “is likely to result in a high risk to the rights and freedoms of natural persons (GDPR A.34.1).
    • This will be informed by your risk assessment.

7. Document, document, document:

• Keep a record of the breach, its effects, your investigation, any corrective and preventive actions, and decisions made (GDPR A.33.5).
  • Do this even if it is established that no notifiable breach has occurred.

8. Fulfil any other Obligations

• You may have breach notification obligations beyond the GDPR.
  • Legal, Insurance, Professional, etc.