The EU’s ‘cyber security’ agency ENISA has issued a report on data breach notifications in the EU.  The report is in response to the 2009 amendments to the ePrivacy Directive requiring telecom and Internet service providers to issue notifications for personal data breaches, which Member States must transpose into national legislation by May 2011. 

The ENISA report reviews best practices in countries where data breaches already are required or are expected to be notified (e.g., Germany, Spain and Ireland), highlights concerns of providers and regulatory authorities regarding the new EU-wide mandatory notification regime, and identifies areas where further EU level or local guidance is needed. 

ENISA’s report is based on surveys and interviews that the agency conducted with various stakeholders last year.  It indicates that telecoms and internet service providers want to be able to categorize breaches according to specific risk levels in order to prevent “notice fatigue,” and are concerned that notification requirements will negatively impact their brands unless they maintain control over communications with relevant data subjects.  National regulatory authorities are also reported to support a system that prioritizes notifications, as many are concerned about whether they will have adequate resources and technical expertise to handle mandatory notifications.  Authorities also call for sufficient sanctioning powers to incentivize data controllers to comply with the regulations.             

In terms of next steps, the report identifies several areas where further EU and/or local level technical and procedural guidance is required, including criteria to measure risk to data subjects and to determine the threshold for notifying, and on how and when authorities and data subjects should receive notifications. 

If Member States take diverging approaches in these and other areas, the compliance burden for providers that operate across the Union could be heavy, and Europe could find itself lumbered with another set of unharmonised and potentially inconsistent laws.  ENISA’s report is especially timely given that the European Commission currently is considering introducing a generally-applicable breach notification regime as part of its consultation on the Union’s data protection framework. 

ENISA will be holding a one day workshop on January 24 to present the results of the report and to provide a forum for exchanging ideas on the way forward.

Tags: Data Breach, Data Security, ENISA, ePrivacy Directive, European Union (EU)
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Mark Young Mark Young

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to…

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to incidents, including personal data breaches, IP and trade secret theft, ransomware, insider threats, and state-sponsored attacks.

Mark has been recognized in Chambers UK for several years as “a trusted adviser – practical, results-oriented and an expert in the field;” “fast, thorough and responsive;” “extremely pragmatic in advice on risk;” and having “great insight into the regulators.”

Drawing on over 15 years of experience advising global companies on a variety of tech regulatory matters, Mark specializes in:

  • Advising on potential exposure under GDPR and international data privacy laws in relation to innovative products and services that involve cutting-edge technology (e.g., AI, biometric data, Internet-enabled devices, etc.).
  • Providing practical guidance on novel uses of personal data, responding to individuals exercising rights, and data transfers, including advising on Binding Corporate Rules (BCRs) and compliance challenges following Brexit and Schrems II.
    Helping clients respond to investigations by data protection regulators in the UK, EU and globally, and advising on potential follow-on litigation risks.
  • GDPR and international data privacy compliance for life sciences companies in relation to:
    clinical trials and pharmacovigilance;

    • digital health products and services; and
    • marketing programs.
    • International conflict of law issues relating to white collar investigations and data privacy compliance.
  • Cybersecurity issues, including:
    • best practices to protect business-critical information and comply with national and sector-specific regulation;
      preparing for and responding to cyber-based attacks and internal threats to networks and information, including training for board members;
    • supervising technical investigations; advising on PR, engagement with law enforcement and government agencies, notification obligations and other legal risks; and representing clients before regulators around the world; and
    • advising on emerging regulations, including during the legislative process.
  • Advising clients on risks and potential liabilities in relation to corporate transactions, especially involving companies that process significant volumes of personal data (e.g., in the adtech, digital identity/anti-fraud, and social network sectors.)
  • Providing strategic advice and advocacy on a range of EU technology law reform issues including data privacy, cybersecurity, ecommerce, eID and trust services, and software-related proposals.
  • Representing clients in connection with references to the Court of Justice of the EU.
Read more about Mark YoungEmail
Show more Show less