India: Breach Notification – A Right To Be Informed

Last Updated: 17 April 2018
Article by NovoJuris Legal

In November 2017, reports confirming a massive data hack at Uber compromising data of almost 57 million users surfaced online. It is pertinent to note that these reports surfaced almost one year after the actual breach occurred. Uber had not intimated when the incident occurred. This incident is an example to understand, why under GDPR providing a breach notification within 72 hours of any such breach has been mandatory if such a breach is directly going result in a risk to the rights and freedoms of natural persons.

The General Data Protection Regulation ("GDPR") which will be effective from May 2018, will transform the way personal data of users/ individuals/ data subjects will be treated. Given the wide territorial scope of GDPR the Regulation applies to the processing of personal data of a person (data subject) who are in the EU, regardless of where the data is processed, ie. in EU or outside of EU. We believe that GDPR is setting a gold-standard for data security, across the world.

The concept of breach notification was seen under the security breach notification law enacted by the State of California in the year 2002. The security breach notification law was enacted to increase public awareness with regards security issues and risks that the internet and data industry faces.

  • Article 33(1) of GDPR mandates data controllers to "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 33(2) mandates data processors to "notify the data controller without undue delay after becoming aware of a personal data breach."

In light of the requirements prescribed under GDPR, it is a pre-requisite to have in place an effective data security incident reporting mechanism including data breach response procedures to enable notifications to be made to data subjects "without undue delay" in the plain language in such circumstances.

GDPR prescribes that every breach notice should describe the exact nature of the personal data breach including the nature, extent and likely factors that may have resulted in breach based on preliminary assessment, where possible, the categories and approximate number of data subjects concerned and nature of data under threat or compromised, including and the categories and approximate number of personal data records concerned with an aim of charting out an effective mechanism to address the breach and resolve the issue without delay.

All entities dealing with personal data should comply with the requirements of reporting breaches in a timely manner. Every "notice of breach" should clearly indicate the cause of breach (Accident / negligent/malicious attack) due to (a) internal factors or (b) external factors and the estimated intensity and consequences of such attack. Such notices should promptly be followed by a detailed report indicating causes, consequences, action taken, including actions taken as preventive mechanism adopted to avert such instances in future.

To be compliant with GDPR, it is recommended for all data controllers and processors to have extensive internal policies within the company, including a breach notification policy addressing the procedures to be followed should there be a security breach. For ease of understanding, think of this security breach policy as a fire safety plan that has to be followed in case a fire breaks out. A fire safety plan will clearly indicate the do's and don'ts, evacuation plan to follow, reporting mechanism, who should what, emergency numbers, internal training and all other necessary steps to be followed so as to contain and reduce the harm caused due to such an accident to the extent possible.

Similarly, a security breach policy will aid an organization to respond to such a data breach within a matter of minutes and enable them to take necessary actions so as to contain and reduce the harm. Additionally, such a policy will enable an organization to comply with the provisions of Article 33 (1) of GDPR, i.e. to report a data breach within a time frame of 72 hours.

In reference to Article 33 of GDPR data controllers may consider following points while considering the implementation of policy in their organization:

  1. Scope and intent of the policy will define how it will be implemented. There are two ways to define a scope, either you can have policy document regulating each and every aspect of GDPR to be followed all across the organization or there can be a series of policies implemented, for example, a policy specifically for security breach and notification thereunder. The second option will allow you to focus and concentrate on minute details of processes, controls, and compliances to be made at each level.
  2. Setting goals for the policy will provide you with accountability and definitive purpose for the whole organization. While setting goals for the policy do think about:

    • Practicality: Ensure that goals that you make are approachable and are ordinary in nature. At the same time keep in mind that these goals are solving the purpose of their implementation, including a way to maintain an internal log, audit trail of how data is used.
    • Risk Management: Focus on what kind of data is at risk? this may be dependent on the industry you might be doing business in. Focus on how a data breach can occur? What are the weaknesses of your system?
    • Flexibility: Try to keep your policy adaptive in nature i.e. it should be able to safeguard you in all sort of data breach situations.
    • Compliance: It should be compliant with law and aid in efficient compliance.

Data controllers, in particular, shall implement processes to identify and respond to data breaches as soon as the event occurs, to have evidence in place to show that where, when and how did data breach occur. Demonstrating that adequate security procedures were in place is essential in order to claim reduced penalties as well.

Status of data protection in India:

Information Technology Act, 2000 and Rules thereunder, ie. Rule 8 of Reasonable Security Practices and Procedures and Sensitive Personal Data or Information, Rules 2011, provides that in case of information security breach, the body corporate shall be able to demonstrate that it has implemented security control measures as per their documented information security programme and information security policies. It would be beneficial if the Rules also provided for notification of breach as well. If personal data is a Fundamental Right of the Indian citizen, then, citizens should have a right to know if such personal data has been subject to a data breach.

If an Indian company is processing data of an EU resident, then GDPR compliances become mandatory. In other cases, Indian companies can adopt best practices such as having detailed policies covering above aspects, periodical audit and availability of audit report to be shared to an external party, maintaining a log of what, how, who, why, where, data is processed. Currently, Government is not included under the ambit.

ISO 27001 certification for data security is also useful.

India would do well in having these gold-standards for data protection and it would augur well if even Government is included to follow the compliance requirements.

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
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
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