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European Data Protection Board Issues Guidelines On Examples Regarding Data Breach Notification – Privacy

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On 14 January 2021 the European Data Protection Board (EDPB)
adopted Guidelines 01/2021 on Examples Regarding Data Breach
Notification, (“Guidelines”). The Guidelines are intended
to complement the Guidelines on Personal Data Breach Notification
under Regulation 2016/679, (“GDPR”), WP 250,
(“Guidelines WP250”), which were produced by the Article
29 Working Party, (“WP29”) in October 2017. The
Guidelines are intended to be practice-orientated, case-based
guidance giving worked examples and non-exhaustive lists of
advisable organisational and technical measures that may assist
with prevention and mitigation in each case. The examples provided
draw on the experiences of European national supervisory
authorities (“SAs”) since the application of the GDPR and
are intended to assist data controllers in deciding how to address
personal data breaches and which issues to consider during risk
assessment. Comments on the new Guidelines are invited and should
be submitted by 7 March 2021.

The GDPR defines a personal data breach as “a breach of
security leading to the accidental or unlawful destruction, loss,
alteration, unauthorised disclosure of, or access to, personal data
transmitted, stored or otherwise processed
.” WP29 has
previously classified personal data breaches into three main
groups: confidentiality breaches, which involve unauthorised or
accidental disclosure of, or access to, personal data; integrity
breaches, which involve unauthorised or accidental alteration of
personal data; and availability breaches, which involve accidental
or unauthorised loss of access to, or destruction of, personal

Breaches can have a number of possible significant undesirable
consequences for data subjects, which can lead to physical,
material or non-material damage, including, among other things,
loss of control over their personal data, fraud or identity theft,
reputational damage, financial loss and other serious social or
economic disadvantages. Data controllers must consider these risks
to individuals’ rights and freedoms and implement suitable
technical and organisational measures to tackle them. Under the
GDPR, controllers are required to document personal data breaches;
notify the competent SAs of breaches, unless they are unlikely to
result in risks to individuals’ rights and freedoms; and inform
individuals of breaches if they are likely to lead to high risks to
the data subjects’ rights and freedoms.

In some cases, controllers will be able to appreciate that an
incident is likely to result in a risk and will need to be
notified, while in others controllers do not need to wait until the
risk and impact surrounding the breach have been fully considered,
as the full risk assessment can take place in parallel with
notification, and information obtained can be made available to SAs
in stages without excessive further delay. It is also important to
note that controllers should not wait for a detailed forensic
examination and (early) mitigation steps before deciding whether
breaches are likely to result in a risk and should therefore be
notified – they should make this assessment on discovering
the breach.

The Guidelines discuss the fact that all controllers should
implement data breach policies and procedures and clear
accountability structures. Appropriate personal data breach
management training for relevant personnel is also emphasized, as
is accountability and data protection by design. Personal data
breach handbooks are also recommended as roadmaps for how to handle
personal data breaches.

The various examples of different types of personal data
breaches described in the new Guidelines are fictitious, but are
founded on SAs’ involvement in data breach notifications. The
EDPB notes that, if the circumstances of actual incidents differ
from the examples provided, they may result in different risks,
which may require alternative steps to be taken. Various scenarios
involving ransomware, data exfiltration attacks, internal human
risk sources, lost or stolen devices or paper documents, mispostal
issues and cases involving social engineering are considered. In
each case, various examples are provided, together with an analysis
of appropriate prior measures and risk assessment and mitigation
and obligations. In most cases, organisational and technical
measures for preventing/mitigating the impacts of the particular
type of breach in question are also considered.


Ransomware attacks often lead to the need for data breach
notification. Ransomware attacks involve malicious code encrypting
personal data, with the bad actor requiring a ransom in exchange
for a decryption code. Ransomware attacks usually constitute
availability breaches, but confidentiality breaches may also be
involved. The Guidelines consider examples of data breaches
involving ransomware with proper backup and without exfiltration,
ransomware without proper backup, ransomware with backup and
without exfiltration in a hospital and ransomware without backup
and with exfiltration.

The EDPB emphasises the importance of a comprehensive evaluation
of the data security systems of controllers who suffer ransomware
attacks, with special emphasis on IT security, and notes that any
vulnerabilities that are identified should be documented and
tackled without delay, as key elements of advisable organisational
and technical measures for preventing/mitigating the impacts of
ransomware attacks.

Suggested measures include, among other things, keeping relevant
firmware, operating system and application software up to date and
ensuring that all reasonable IT security measures are established,
effective and regularly updated; ensuring that processing systems
and infrastructure separate data systems and networks to avoid the
proliferation of malware within the organisation and to external
systems; establishing an up-to-date, secure and tested backup
procedure; implementing appropriate, up-to-date, effective and
integrated anti-malware software and firewall and intrusion
detection and prevention systems; implementing appropriate employee
training; putting in place robust encryption and authentication;
and carrying out regular vulnerability and penetration testing.

Data Exfiltration Attacks

Data exfiltration attacks take advantage of weaknesses in
services offered over the internet and are usually intended to
copy, exfiltrate and abuse personal data for some malicious
purpose. Data exfiltration attacks mainly comprise breaches of
confidentiality and sometimes also data integrity. The Guidelines
explore examples involving exfiltration involving job application
data from a website, exfiltration of hashed passwords from a
website and credential stuffing on a banking website.

To assist in preventing/mitigating the impacts of data
exfiltration attacks, the Guidelines emphasise the importance of
re-evaluating IT security systems and suggest measures that include
use of sophisticated encryption and key management, (with
cryptographic hashing and salting for secret information such as
passwords being preferred over encryption and authentication
methods that do not involve passwords being preferable); keeping
systems (software and firmware) updated and ensuring that all IT
security measures are in place, effective and regularly updated
when circumstances or processing change; using strong
authentication methods, such as two-factor authentication, together
with an up-to-date password policy; secure development standards,
such as the filtering of user input and brute force prevention
measures, (e.g. limiting the number of re-tries); implementing
strong user privileges and access control management policies;
using suitable, current, effective and integrated firewall,
intrusion detection and other perimeter defence systems; carrying
out regular IT security audits and vulnerability assessments
(penetration testing); and performing regular evaluations and
analysis to ensure backups can be used to restore any data whose
integrity or availability has been affected.

Internal Human Risk Source

Human error leading to personal data breaches is a frequent
occurrence and can be both deliberate and accidental, making it
difficult for data controllers to identify weaknesses and take
steps to avoid them. The EDPB considers various examples of data
breaches of this nature, including exfiltration of business data by
a former employee and accidental transmission of data to a trusted
third party, noting that such breaches usually comprise breaches of

Human errors may by reduced or mitigated by, among other things,
conducting regular employee training, education and awareness
programs; establishing and maintaining effective data protection
and privacy practices, procedures and systems; establishing robust
access control policies and obliging users to adhere to them;
putting in place practices to force user authentication when
accessing sensitive personal data; de-activating users’
company-related accounts immediately when they leave the company;
monitoring unusual dataflow between file servers and employee
workstations; reviewing employees’ access policies;
de-activating open cloud services; prohibiting access to known open
mail services; making clear desk policies compulsory and
automatically locking computers after certain periods of
inactivity; and using dedicated systems for managing personal data
that apply appropriate access control mechanisms to prevent human
error (e.g. sending communications to the wrong subject).

Lost or Stolen Devices and Paper Documents

Portable devices are often stolen or lost, meaning that
controllers must consider the circumstances of the processing
operation, such as the type of data stored on the device, the
supporting assets and steps taken before the breach to ensure
suitable security, which all impact upon the possible effects of
the data breach. The Guidelines note that risk assessment may be
difficult if devices are no longer available. These breaches
constitute confidentiality breaches, but can also compromise
availability and integrity if there is no backup for a stolen
database. The Guidelines consider various examples involving stolen
material storing encrypted personal data, stolen material storing
non-encrypted personal data and stolen paper files with sensitive

To prevent or mitigate the impact of loss or theft of devices,
organisations should consider activating encryption on devices;
using passcodes/passwords on all devices; using multi-factor
authentication; activating functionalities to allow mobile devices
to be located in case of loss; using secure VPNs to connect mobile
devices to back-end servers; properly regulating device usage; and
using mobile device management software/apps, enabling remote wipe
functions and installing physical access controls.


Breaches involving mispostal also involve internal human error,
but not malicious action. As few mitigating steps by controllers
are possible in cases of mispostal, avoidance is even more
important than with other types of breaches. The Guidelines explore
various examples involving snail mail mistake, sensitive personal
data sent by mail by mistake and personal data sent by mail by

Although mispostal may seem less of a risk, steps suggested for
preventing/mitigating the impacts of mispostal include, among other
things, setting rigorous standards for sending letters and emails;
listing multiple email recipients in the Bcc field as standard;
using automatic, rather than manual, addressing using data from a
current database; applying message delay when sending emails; and
de-activating auto-complete when typing in email addresses.

Social Engineering

The Guidelines also consider certain other types of personal
data breaches linked to social engineering, including examples
involving identity theft and email exfiltration. The EDPB focuses
on a number of measures that could help to prevent such attacks,
such as the importance of appropriate authentication mechanisms and
robust prior client validation processes, (recommending out-of-band
multi-factor authentication methods).


The Guidelines will provide welcome guidance to data controllers
in respect of various different types of personal data breaches,
and the practical real-life examples should assist controllers who
experience similar breaches. The scenarios set out should help
controllers to determine whether any personal data breaches that
they suffer are sufficiently serious to merit notification to the
relevant SAs and also any data subjects impacted by such breaches.
The clarity of the Guidelines may be helpful both to organisations
and the resource-constrained SAs in preventing over-reporting of
personal data breaches. It will be interesting to see what comments
are received regarding the draft Guidelines and whether further
details and examples will be included in the final

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.

Source: on 2021-02-02 04:45:00

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