GDPR Requires Prompt Notification Upon Data Breach Discovery

New General Data Protection Regulations (GDPR) regulations go into effect this May of 2018 that apply to any company that has Personal Identifiable Information (PII) of any European citizen, regardless of where that data resides.  These new regulations are getting the attention of U.S. businesses because GDPR will impose tough penalties on entities found to be in violation of the regulations, regardless of where the company is based.

Article 33 of GDPR specifically deals with notification responsibilities of data processors upon discovery of a breach and stipulates that notification must occur within 72 hours of discovery, much longer than the typical 30 day statutory deadline imposed by many U.S. states.  GDPR further specifies hefty penalties on organizations that have not complied with the notification requirements.

Article 83, section 4 states the following:

“Infringements of the following provisions shall, in accordance with paragraph 2, be subject to administrative fines up to 10 000 000 EUR, or in the case of an undertaking, up to 2 % of the total worldwide annual turnover of the preceding financial year, whichever is higher:”

10,000,000 Euros as a minimum fine should get most company’s attention and is large enough of a penalty to knock out many computer forensics firms, eDiscovery or Law Firms that are found to be negligent of the Data Breach notification requirements of GDPR.

Article 33 of GDPR states the following:

Article 33
EU GDPR
"Notification of a personal data breach to the supervisory authority"

=> Article: 4
=> Recital: 75, 85, 87, 88
=> administrative fine: Art. 83 (4) lit a
=> Dossier: Personal Data Breach
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. 
=> Article: 39, 83
=> Recital: 75
=> Dossier: Reporting to supervisory authority, Obligation, Risk For Rights And Freedoms
2. The processor shall notify the controller without undue delay after becoming aware of a personal data breach. 
=> Dossier: Processing On Behalf (Processor)
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; 
=> Dossier: Data Protection Officer
(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.