9 October, 2018
British Airways have found themselves the subject of a significant data breach where some 380,000 customers' data has been stolen. The hack is said to have taken place over a two week period from the 21 August to the 5 September, during which time personal and financial details relating to passengers were stolen. The airline however contends that this information did not include travel or passport details.
While financial information is not considered 'special' category personal data in accordance with the GDPR, the hack nevertheless remains of high severity due to the security codes or 'CVV' numbers which were accessed by the hackers. Access to this code along with credit card numbers and expiry dates allows for extensive misuse of cards. This information is considered particularly valuable and companies are not permitted to store this data. While British Airways insists that it did not do so, users who booked or amended bookings during the two week period were the victims of this information being stolen. It is crucial that personal data is protected by appropriate technical protection measures, which should be put in place to effectively limit the likelihood of identity fraud.
Timing is everything
The GDPR has clearly set out the requirement of notification of a breach. This requirement is two-fold and relates firstly to informing a supervisory authority and secondly a data subject.
A data controller should notify a personal data breach to the supervisory authority without undue delay and, where feasible, not later than 72 hours after having become aware of it, unless the controller is able to demonstrate, in accordance with the accountability principle, that the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons.1
On the 7 September the Information Commissioner's Office ("ICO") stated that British Airways had informed them of their breach and that enquiries were being made.2 This successfully satisfies the notification period after having become aware of the breach the previous day.
Where a breach is likely to result in a high risk to the rights and freedoms of a data subject, the controller shall, without undue delay, notify the data subject to whom the breach relates.3
British Airways firstly contacted customers informing them that "financial details" had been "compromised", confirming a day later that this too included bank card numbers, expiry dates and CVV codes. Both emails sent by British Airways advised customers to contact their banks.
The speedy response displayed by British Airways is in stark contrast to the position adopted by Yahoo, now known as Oath, following the cyber-attack which occurred in 2014 and was not disclosed until September 2016.4
The potential implementation of hefty fines of up to €20,000,000, or up to 4% of the total worldwide annual turnover of the preceding financial year, whichever is higher, for its breach is undoubtedly the aspect of GDPR which has struck the most fear into organisations. The GDPR grants each supervisory authority the power to impose administrative fines. In determining whether a fine should be imposed and the monetary value of same, certain factors will be considered including the nature, gravity and duration of the infringement, the categories of personal data affected, any previous infringements by the controller or processor and any action taken to mitigate the damage suffered by the data subject.
The purpose of the fines is that they are effective, proportionate and dissuasive and these factors will be considered in assessing which fine to implement. In October 2016, the ICO imposed a fine of £400,000 on TalkTalk, with a further fine of £100,000 imposed in August 2017. These were considered substantial fines at the time.5 However, in light of GDPR, we can expect with some degree of surety that fines implemented by supervisory authorities will be on a much larger scale to those levied pre-GDPR.
In addition to being exposed to administrative fines, organisations should be aware that data subjects who are victims of a breach of GDPR have the right to claim for compensation for financial and non-financial losses. The GDPR allows any person who has suffered material or non-material damage as a result of an infringement of the regulation, the right to receive compensation from the controller or processor for the damage suffered.6 British Airways has vowed to compensate passengers affected by the theft of personal information from its website.7
British Airways has not been the only company to suffer a serious data breach of late. Hackers again struck on 25 September when they successfully stole keys to Facebook which allowed them to access up to 50 million user accounts. This allowed the hackers to use the affected accounts as their own, reading and writing private messages and posts.8 It is undetermined yet whether the breach may also affect Facebook Login, a service used to enter other apps such as AirBnB and Tinder.9
This further hack will not bode well with Facebook users following the data breach involving the research firm Cambridge Analytica in early 2018. However, this is the first time Facebook has announced a major data breach since the coming into effect of the GDPR, and the Data Protection Commissioner has been informed.
The foregoing highlights the importance of having appropriate technological protection and organisational measures implemented to establish immediately whether a personal data breach has taken place. By having such a system in place, it allows for compliance with the notification period under the GDPR and also allows for mitigation of risk, which will assist in lowering the potentially high fines that could be implemented.
1 Article 33 GDPR
3 Article 34 GDPR, s.87 Data Protection Act 2018 ("DPA")
6 S82(1) GDPR
7 Ft.com. (2018). British Airways vows to compensate passengers after data breach | Financial Times. [online] Available at: https://www.ft.com/content/5eddd118-b27e-11e8-99ca-68cf89602132 [Accessed 12 Sep. 2018].
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