Canada: Cyber Security: A 5-Step Data Breach Risk Mitigation Plan For Boards & Directors

Last Updated: February 28 2017
Article by David Fraser, David Wallace and Mario Garcia

On January 19, 2017, the Canadian Securities Administrators (CSA) issued Multilateral Staff Notice 51-347 disclosure of cyber security risk and incidents. The Staff Notice only applies to reporting issuers, but it reflects a broader prevalence of, and heightened concern about, cyber security risks and the related liability exposure that all organizations, officers and directors face. Case in point: on February 3, 2017, the Québec Superior Court authorized a consumer privacy class action in Zuckerman v. Target Corporation seeking financial compensation for – you guessed it – a data / privacy breach.

Here's a five-step cyber security mitigation plan that organizations and their directors can and should implement now to minimize the growing liability risks of suspected and actual cyber attacks.

1. Make it a (priority) corporate governance matter.

The liability exposure for cyber security risks is high and getting higher. These risks warrant high-level attention: have a board member or committee take this on as an important and a priority project – and allocate the necessary resources to do the project well.

Quasi-criminal liability. Failure to follow the new Canadian data breach rules under the Digital Privacy Act (a.k.a. Bill S-4), once they take effect, can lead to quasi-criminal liability (it's not a criminal offence but it's subject to a penalty that's similar to a criminal offence, although the court procedures are less complicated) for both organizations and for directors personally. The Digital Privacy Act amends the federal Personal Information and Protection of Electronic Documents Act (PIPEDA) to mandate a data breach response that includes reporting, notification and record-keeping requirements. While most of the Digital Privacy Act took effect in June 2015, the breach notification sections still aren't in effect because they depend on regulations that the government hasn't yet released.

Civil Liability. Then there are the potential lawsuits resulting from the breach: consumers suing the organization for losing their personal (often sensitive financial) information; banks suing the organization for the cost of compensating consumers for financial losses or replacement of financial information (e.g., credit card replacements); and shareholders/investors suing the corporation and the corporate directors personally (derivative actions) for decreased share values. These lawsuits are now par for the course in the U.S., and are migrating to Canada. There are over 30 pending data breach class actions in Canada; some are being certified (authorized by a court to proceed). On February 3, 2017, the Québec Superior Court authorized a privacy class action in Zuckerman v. Target Corporation. Consumers are suing Target for compensation resulting from a pre-2013 data breach that involved the personal information of potentially 70M customers and approximately 40M credit and debit cards. And though none of these cases have yet been decided by a court, it's only a matter of time ... and win, lose or draw, the organizations will bear the hefty legal costs associated with defending the legal actions.

Negative Publicity. And don't underestimate the impact of negative media scrutiny, above and beyond any direct financial liability exposure. With the pervasive and real-time power of the media, all eyes (actual and prospective customers, actual and prospective investors and privacy regulators) will be on the organization.

2. Get a good handle on your legal notification obligations.

When a data breach is suspected or actually occurs, organizations need to know who they must – and who they should – tell. Understanding who to notify and when is a critical pre-cursor to creating a response plan that meets the organization's legal obligations.

Privacy Laws. Only seven Canadian statutes currently specify data breach responses in the private sector. All require notification of the individual(s) whose data has been breached. Most deal specifically with health-related data; only one (Alberta) applies to all personal information held by private organizations:

More, however, are coming when the data notification sections of the Digital Privacy Act, mandating a data breach response including reporting, notification and record-keeping requirements, take effect. The government hasn't given any indication when this will be, but it will take time for organizations to be ready to comply – so start now. The Digital Privacy Act mandates:

  • Commissioner Report. The organization must report to the Federal Privacy Commissioner any breach of security safeguards if it's reasonable in the circumstances to believe the breach creates a real risk of significant harm to an individual. "Real risk" depends on the sensitivity of the personal information involved in the breach and the probability it has been, is being or will be misused; the final regulations could outline additional factors to consider. "Significant harm" includes bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record and damage to or loss of property.
  • Individual Notification. The organization must notify the individual as well as the Commissioner; unlike Alberta, no Commissioner order is a pre-requisite to individual notice.

Negligence Laws. In addition to the notification requirements under privacy legislation, the organization could also have a broader legal duty under negligence law to notify an individual whose data has been breached if that breach could harm, or could materially increase the risk of harm to, that individual. This broader legal obligation to notify could exist even if there's no such obligation under privacy legislation.

International Laws. Many organizations will need to also think beyond Canadian borders: the laws of other countries could apply, imposing different notification and disclosure obligations and carrying significant consequences for the organization. For example, in Zuckerman v. Target, it was Target's actions in the U.S. that created significant liability exposure in Canada. Similarly, an organization's actions in Canada could create significant liability exposure in another country. Many foreign breach notification laws depend on the place of ordinary residence of the individual the breach affects. For example, a Canadian company with information about a California resident who vacations in Canada might have obligations under California's laws if there's a breach of the California resident's information. To complicate things, different jurisdictions have different definitions of "breach" and different notification requirements.

3. And have a good handle on your risk and incident disclosure obligations too.

Reporting issuers (organizations subject to ongoing public disclosure obligations under securities laws and securities of which are generally traded on a public stock exchange) have additional obligations. Generally, securities laws require reporting issuers to publicly disclose all material changes, material facts and material risks to their business. The Staff Notice is one of a series of publications the CSA has issued noting the increased frequency, complexity and costs of cyber attacks on organizations, and highlighting the importance of understanding, mitigating and providing effective disclosure of such risks (see also the CSA's 2016-2019 Business Plan and Staff Notice 11-332). The Staff Notice identifies cyber security as a priority area for issuers, reviews previous disclosure practices and offers assistance to issuers in discharging their cyber security-related disclosure obligations. Staff Notices aren't "laws", so they aren't mandatory per se, but the fact the CSA issued this Staff Notice suggests it's concerned that reporting issuers' aren't adequately disclosing cyber risks.

Risk Factor Disclosure. Sixty one percent of the 240 issuers the CSA reviewed mentioned cyber security as part of their risk factor disclosure, mainly as a result of their reliance on information technology systems and third party risk exposure. The potential impacts of data breaches that issuers identified included: operational delays (e.g. production downtimes or plant and utility outages); inability to manage the supply chain; inability to process customer transactions or otherwise service customers; inventory management disruptions; lost R&D data; and intellectual property devaluation. The CSA concluded the ubiquity of cyber security concerns led issuers to use generalized "boilerplate" language in their risk factor disclosure. It admonished issuers for doing so and suggested they instead pay attention to their specific circumstances, particularly in terms of exposure and preparedness. There's an express expectation that the issuer will disclose specific risks rather than generic risks applicable to all issuers, and will tailor disclosure to their specific circumstances. But issuers shouldn't confuse tailoring disclosure to their specific circumstances with disclosing cyber security strategies or vulnerabilities that could compromise it. When determining what information to disclose, issuers need to balance the probability of a breach taking place and the consequences of such breach.

Cyber Security Incidence Disclosure. The Staff Notice reminds issuers that they must disclose only those security breaches that constitute a material change (requiring immediate disclosure) or a material fact (requiring disclosure as part of its ongoing reporting obligations) to their business. For example, an issuer dealing with highly sensitive data could consider a minor breach to constitute a material change; an issuer dealing with the delivery of services might not. A non-exhaustive list of factors for issuers to consider in determining whether there's been a material change includes the nature of the issuer and the frequency, scope and consequences of the breach. And since discovery of cyber security breaches tends to be after the breach has occurred, the issuer may have to disclose the incident before resolving the cause to comply with its reporting obligations.

4. Assess your current situation.

Once you know what your obligations are, conduct a risk assessment: determine the assets that are most susceptible to a data breach, and determine the greatest cyber threats to which they are exposed. Using third party experts to validate the risk assessment usually results in more credibility, with the additional benefit of the ability to benchmark against others in your industry.

Carefully assess your situation with your insurance broker too, because specialized lines of cyber risk insurance are increasingly available – and advisable.

5. Be well-prepared, well in advance.

A lack of planning will lead to a poor response, and a poor response will make the breach – and its fallout – much, much worse. Create a well-conceived data breach action plan to deal with and mitigate an actual or a suspected data breach. Then train all relevant staff on it and rehearse it periodically. The specifics of the plan will vary depending on the nature of the risk exposure uncovered in the assessment, but every plan should:

Act fast. The plan should mandate that the organization take immediate steps to contain the breach and to mitigate the harm that could result. The exact steps will depend on the nature of the breach, but should always include an attempt to retrieve the breached information and limit further circulation of it, and taking all systems offline.

Third parties. Involve major contractors and service providers in both creating the plan and incorporate them into the plan.

Insurance. Allow for immediate notification to the insurer.

Retain legal counsel. Provide for retention of legal counsel (ideally, counsel that will be as ready as the organization and is teed up in advance). Since litigation after a privacy breach is highly likely, it's critical to take steps to establish and preserve privilege over the organization's communications and information generated about the breach to prevent it from being used against the organization in litigation.

Law enforcement. Consider whether the response will include making a report to law enforcement. There's sometimes little legal benefit to be gained from doing so, but there may be some public relations benefit.

Communications plan. Don't let fumbles in the response become the story. Line up internal and/or external resources to create and implement a communications plan about the breach. And assume both that you don't know the true extent of the breach, and that "outsiders" know more than you do. Provide sufficient detail, including who to call for assistance at the organization.

Legal notifications & disclosures. Know who the organization must notify and how – and plan to do it promptly. Delay in notification will be noticed and become the story and the complaint. So if there is any delay, be ready to explain it, although most breaches become smaller the more you investigate them. And since notification is likely to trigger complaints to relevant privacy regulators, provide copies of the mandatory breach report to other Privacy Commissioners who might have an interest in the incident.

Sweat the small stuff. It's not a requirement, but consider whether the organization will offer credit monitoring and in what circumstances (i.e., depending on the nature of the information that's breached). Anticipate complaints as a result of the disclosures, and have a plan to be able to handle the resulting volume of calls/emails. Plan to respond to complaints clearly and directly; advance scripting is beneficial. And apologies go a long way – but don't accept liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions