UK: International Data Breach Strategies

Over recent years, cyber-attacks and data breaches have become increasingly common. The introduction of the General Data Protection Regulation (GDPR) has seen a surge in breaches being notified to regulators and many further breaches being reported in the media. Helen Davenport provides insight into the key considerations of international data breach strategy.

To listen the podcast click here

Subscribe

The prospect for an organisation of having to engage with the UK's regulator, the Information Commissioner's Office (ICO), is greater than ever. With the increasing globalisation of businesses and an ever growing reliance on data, international data breaches are becoming increasingly common.

International data breaches pose additional issues to domestic breaches; the potential application of laws in a number of jurisdictions creates additional challenges for dealing with a breach if it is international in nature. Consequently, at our recent IT Masterclass we gathered data privacy specialists from our offices across the globe to discuss strategies to mitigate the potential impact of data breaches and lessons learned from previous data breaches.

What should be businesses think about when it comes to an international data breach strategy?

Any breach strategy should start with security measures to avoid a breach in the first place; prevention is better than cure. A recent example of an international data breach concerned Equifax Limited. Equifax was fined £500,000 by the ICO, the maximum possible fine at the time as the events took place in 2017 and the investigation had to be carried out under the Data Protection Act 1998, rather than the current GDPR.

The data breach took place in the US, however the ICO was concerned as the breach affected up to 15 million UK citizens. An example of Equifax's failings, citied by the ICO, was poor retention practices, in particular that the compromised data included data that should have been deleted in the US as the UK Company had taken over certain processing activities. In other examples of breaches, the consequences of the breach have been exacerbated by the compromised data and the encryption keys being stored on the same system, potentially making it easier for cyber criminals to obtain both more easily.

Organisations should also consider auditing or requiring the self-certification of their data processors and should not underestimate the role played by human error and/or incompetence in data breaches and provide appropriate training for employees.

What else can businesses do to mitigate the risk of an international data breach?

A key element of an organisation's international breach strategy should be incident response planning. Gowling WLG have seen and assisted with data breach incident response plans taking into account the notification and reporting obligations from a number of jurisdictions, as well as any relevant sector specific reporting obligations. We have done this using schedules and charts to help organise and present the information.

An international data breach response plan should be reviewed for the major jurisdictions of operation for the organisation concerned. If a breach occurs an organisation will be under considerable pressure to manage the situation and respond in a timely manner, for example due to the requirement to notify breaches within 72 hours under the GDPR unless the breach is unlikely to result in a risk to the rights and freedoms of individuals.

A well prepared breach plan will save time and if a breach does occur it enables organisations to focus on meeting any notification requirements. A breach plan will also help with prioritisation and ensuring a consistent breach response.

Incident response plans need to be treated as living documents, in particular they need to be reviewed for legal developments. This is particularly relevant in the US given the de-centralised nature of the breach notification regimes and the fact that there are 50 different regimes that are constantly changing.

Given the attention that data privacy issues are receiving globally and other jurisdictions having introduced new legislation in this area, such as the GDPR, jurisdictions that currently have little in the way of data protection legislation are also expected to introduce their own new laws in the not too distant future.

If you are using a data breach incident chart of the type commonly appended to an international data breach response plan then this needs to be periodically reviewed by legal counsel for any updates.

When treating an instant response plan as a living document, it is important to have practice runs with the international data breach team identified in the plan. These may help shine a spotlight on practical issues not foreseen when the plan was crafted. For example, if there are any local language issues how will these be addressed?

Finally, it is also important to monitor for threats and we are seeing regulators increasingly interested in the technological security measures that organisations have in place to protect personal data. They will expect a robust security programme and evaluate the breach incident from that standpoint, particularly if there is sensitive or special personal data involved.

What strategies can organisations deploy when a data breach arises?

Stopping any further data loss is clearly a priority, but at the same time organisations should ensure they notify insurers to avoid any issues with failure to notify and not being covered. The insurers may also be able to or want to provide support in helping dealing with the incident, which you may wish to take advantage of.

Organisations should also take steps to protect the documents they create in relation to the incident if possible, particularly where what has happened and the potential consequences are uncertain. When it comes to internal investigations and legal privilege there may be distinctions between relevant jurisdictions and when internal or external legal counsel should become involved for the purposes of the documents attracting privilege; this should be considered as part of instant response planning and documented accordingly.

Another common error we have seen with international data breaches is failure to notify not only the affected parties and the regulator but also other potentially interested parties. In particular, and this relates to data mapping exercises, it is important to identify that personal information held by an organisation may be under the custody and control of another organisation and the responsibility of the organisation experiencing the incident is to immediately notify the controller. These concepts are much clearer under the GDPR than in some other jurisdictions and it is not always apparent which party is the controller and which party is the processor; the terms of relevant contractual agreements need to be reviewed and taken account of.

A common misconception is how low the risk of harm threshold is in some jurisdictions, in many jurisdictions including Canada, reputational risk or embarrassment is seen to generate just as serious risk as other forms of harm.

It is also important to keep in mind the big picture and that regulators will share information and to expect the unexpected. We have seen a number of examples where a regulator that a client has not engaged with has become aware of a data breach from another regulator or a third party source and has pro-actively approached the client to find out why the breach had not been reported to it. In some cases, those regulators has also enquired about the technological security measures the client has in place.

What about when the breach has been dealt with?

Any organisation that experiences a data breach should take the time afterwards to evaluate its response and the lessons that can be learned for next time if the organisation is unfortunate enough to experience a repeat incident. The experience of handling a breach provides a valuable source of information. Furthermore. regulators will expect organisations to take steps to avoid repeat incidents and those that do not risk enhanced regulatory activity, including fines. One lesson that we commonly see being learned is the issues that can arise through having applied a lack of resource to dealing with incidents involving data protection and cyber security more generally.

Read the original article on GowlingWLG.com

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
Events from this Firm
19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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