Since May 2012 Italy has implemented two important EU Directives2,3 in the sector of electronic communication networks and services. In the course of such implementation4 special attention was dedicated to the consequences deriving from data breaches.
On this aspect the existing Privacy Code5 was amended and integrated with provisions focusing onto the obligations providers offering electronic communication services accessible by the general public are hold to comply with when data breaches occur.
The new provisions set the following key principles service providers have to take into proper account:
- In case of breaches the provider has to notify, "without any undue delay", the Italian Data Protection Authority6 (DPA) about the accident.
- Should the breach imply the risk of prejudice to the personal data of the provider's client or of third parties, the notice has to be delivered also to such interested subjects.
- Providers are exempt from giving notice only if they're able to substantiate to the local DPA that data illicitly accessed had been encrypted through proper technical measures in a way to make their content unintelligible to the offender and that such measures were efficiently in place at the moment of the breach.
- In case provider fails to inform all interested subjects about a relevant data breach, the DPA may issue an order to notify.
- As to content, the notice to the DPA has to describe in detail the kind of breach ascertained, its potential consequences and the measures and steps taken for remedy, while the notice to provider's clients or to interested third parties has: (a) to inform about the nature of the breach, (b) to offer a contact address for achieving further information, (c) to provide suitable indications as to cautionary measures to adopt in order to contain as much as possible the prejudice potentially deriving from the breach.
- In general terms the DPA is entitled to issue specific guidelines with respect to notice obligations, modalities, format and content of the notification.
- The providers are held to set up – and keep up to date – a special inventory where all violations and breaches occurred have to be registered.
- In case a provider supplies a publicly accessible electronic communication service through a sub-contractor or a third party, the latter is held to offer the provider, "without any undue delay", all indications about events occurred and all information necessary for performing timely his notice requirements.
Barely two months after the new provisions came into force the Italian DPA took action and opened a public consultation about the guidelines he intended to serve to Telco companies and providers of Internet services for guidance in case of data breaches.
According to the Authority's proposal the upcoming guidelines will focus on the following aspects:
- Compliance with the new obligations and requirements will be sought exclusively from companies providing phone or Internet access services. Therefore search engines, corporate Intra-nets, Internet points (simply offering terminals for Internet access) and on-line platforms distributing third party content won't have to worry about the DPA's indications.
- Notice "without undue delay" will have to be intended as an obligation to offer the DPA the indications necessary for a first evaluation of the breach within 24 hours from the event, while a detailed description – on a standard form available on the DPA's website – will have to be provided within three days. Providers will also need to give indications about the steps taken for remedy (and for preventing future breaches of identical nature).
- In case of significant breaches providers will need to notify individually every single client and potentially affected third party. "Significant breaches" will be those likely to result in prejudice to a subject's personal data or to sensitive information. In order to be able to face such breaches, providers will be well advised to perform a suitable in-advance risk analysis and to think of both, of a proper communication strategy (capable of timely reaching out to all of their clients) as well as of an efficient breach recovery plan. The risk analysis should be conducted by taking into account the following criteria: 'quality' and 'quantity' of the data involved in the breach (gaining knowledge about an address is clearly less critical then access to financial details or credit card codes), 'topicality' (undue access to old and no longer actual information will probably give rise to less concern than a breach into a database kept up to date) and finally 'nature and level of potential prejudice' (providers will need to ask themselves how the data breach may affect their clients: Will data be lost forever? Is an identity theft likely to occur? Will the data accessed impact on client's or a third party's private sphere? Will prejudice result in physical or economic damages to data subjects? Will data subject's reputation suffer from the violation?).
- Failure of timely breach notice to the DPA will be sanctioned through a fine (from Euro 25.000 up to Euro 150.000); an identical omission will imply a fine (from Euro 150 up to Euro 1.000 for each omission). Providers found without the special breach inventory or with registrations not kept up to date will expose themselves to a fine from Euro 20.000 up to Euro 120.000. Non compliance with some requirements and obligations may also result in a criminal offense.
Sanctions may also be extended to providers' sub-contractors or suppliers if they take part to the service's performance.
There is now a 90 days deadline for submitting suggestions and comments to the DPA's draft text of the planned guidelines.
1. Felix Hofer is a named an founding partner of the Italian law firm Studio Legale Hofer-Loesch-Torricelli, in Firenze (Italy), via Giambologna no. 2/R; he may be reached through the following contact details: Phone: +39 055 5535166 – Fax: +39 055 578239; E-mail: firstname.lastname@example.org (personal account) – email@example.com (firm account).
2. Directive 2009/136/EC of November 25th, 2009 amending previous Directive 2002/22/EC on universal service and users' rights relating to electronic communication networks and services and Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communication sector.
3. Directive 2009/140/EC of November 25th, 2009 on a common regulatory framework for electronic communication networks and services.
4. Performed through Legislative Decree no. 69 of May 28th, 2012.
5. Legislative Decree no. 196 of June 30th, 2003, where and article 32-bis was added.
6. Autorità Garante per la Protezione dei Dati Personali; for details refer to the website at the following URL: http://www.garanteprivacy.it/garante/navig/jsp/index.jsp
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.