Comparing GDPR Data Breach Requirements with Other Global Data Protection Laws

Ever wondered how the GDPR stacks up against data protection laws worldwide? In an era where data breaches are not just a possibility but a frequent reality, understanding the nuances of how various regulations handle these incidents is more important than ever. The General Data Protection Regulation (GDPR) has set a high standard with its stringent requirements for breach notifications and penalties, but it’s not the only law currently in force around the globe.

Other regions also have their own frameworks for managing data breaches, each with its own set of rules, timelines, and penalties. As businesses operate increasingly on a global scale, it becomes crucial to grasp how these different legal landscapes compare and contrast. This awareness helps ensure compliance, avoid costly fines, and effectively protect sensitive data across multiple jurisdictions. In this blog post, we’ll break down these regulations, offering you a comprehensive perspective on global data protection practices.

Table of Contents

GDPR Data Breach Requirements

Under the GDPR, a data breach is defined as a security incident that leads to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data. This includes any event where personal data is compromised, whether due to a cyberattack, human error, or other security failures. The breach can involve various forms of data, such as electronic records, physical files, or even verbal communications, as long as they contain personal data that can identify an individual. Importantly, the GDPR requires that breaches be reported to authorities and, in some cases, to affected individuals, within strict timeframes.

Notification Requirements

Under the GDPR, when a data breach occurs, the notification requirements are strict and time-sensitive:

Supervisory Authority Notification: If the breach is likely to result in a risk to the rights and freedoms of individuals, the organisation must notify the relevant supervisory authority (e.g., the Information Commissioner’s Office in the UK) without undue delay and, where feasible, within 72 hours of becoming aware of the breach. If the notification is not made within 72 hours, the organisation must provide reasons for the delay.

Content of Notification: The notification to the supervisory authority must include key details such as:

The nature of the data breach, including the categories and approximate number of individuals and data records affected.
The likely consequences of the breach.
Measures taken or proposed to address the breach and mitigate its possible adverse effects.

Notification to Individuals: If the breach is likely to result in a high risk to the rights and freedoms of affected individuals, the organisation must also inform those individuals without undue delay. The notification must be clear and provide information on the nature of the breach, possible consequences, and what steps the organisation has taken or will take to mitigate the impact.

Exceptions: Notification to individuals is not required if:

The organisation has implemented appropriate technical and organisational protection measures (like encryption) that render the data unintelligible to unauthorised parties.
The organisation has taken steps following the breach to ensure that the high risk to individuals is no longer likely to materialise.
It would involve disproportionate effort, in which case a public communication or similar measure may suffice.

These requirements aim to ensure that individuals and authorities are promptly informed about breaches, allowing them to take appropriate actions to protect their data and rights.

Penalties for Non-Compliance

The GDPR imposes significant penalties for non-compliance, particularly in cases where organisations fail to adhere to its strict requirements. The penalties are designed to be dissuasive and proportionate to the nature and severity of the infringement:

Tiered Fines: GDPR establishes a tiered approach to fines:

Lower Tier Fines: Up to €10 million or 2% of the company’s global annual turnover of the preceding financial year, whichever is higher. This applies to less severe breaches, such as failing to properly notify the supervisory authority or maintain adequate records of processing activities.

Higher Tier Fines: Up to €20 million or 4% of the company’s global annual turnover of the preceding financial year, whichever is higher. This applies to more serious violations, such as breaches of the core principles of data processing (e.g., unlawfully processing data, lack of consent, failure to uphold data subjects‘ rights).

Consequences Beyond Fines:

Reputational Damage: Non-compliance can lead to significant reputational harm, which can result in lost customers, damaged brand trust, and reduced business opportunities.
Remediation Orders: Supervisory authorities can order organisations to take specific actions to remedy their non-compliance, such as halting data processing activities, deleting data, or implementing additional safeguards.
Legal Action: Individuals affected by GDPR violations may pursue legal action, seeking compensation for damages caused by the infringement.
Increased Scrutiny: Organisations found in breach of GDPR may face ongoing scrutiny and audits from supervisory authorities, potentially leading to further fines or requirements for changes in business practices.

Other Global Data Protection Laws

United States (California Consumer Privacy Act – CCPA)

Under the California Consumer Privacy Act (CCPA), a data breach is defined as the unauthorised access and exfiltration, theft, or disclosure of personal information due to a lack of reasonable security measures. The CCPA’s definition of a data breach specifically focuses on incidents where personal information—such as Social Security numbers, driver’s license numbers, financial account details, or health information—is compromised.

Scope of Personal Information:

The CCPA defines personal information broadly, covering any data that identifies, relates to, describes, or could reasonably be linked with a particular consumer or household. This includes:

Identifiers like names, addresses, email addresses, and phone numbers.
Commercial information, such as records of property, products, or services purchased.
Internet activity, including browsing history and search history.
Geolocation data, biometric information, and other categories related to a consumer’s interaction with a website or service.

Data Breach under CCPA:

For a breach to qualify under the CCPA, it must involve unencrypted or unredacted personal information. If a business has taken reasonable steps to secure personal information—such as encryption—before the breach, it may not be liable under the CCPA, as the compromised data would be deemed inaccessible or unreadable by unauthorised individuals.

Notification Requirements

The California Consumer Privacy Act (CCPA) has specific notification requirements when a data breach occurs, though these requirements overlap with California’s general data breach notification law (Cal. Civ. Code § 1798.82). Here’s a breakdown of the notification requirements under these laws:

Timing of Notification:

Without Unreasonable Delay: Businesses are required to notify affected California residents of a data breach “in the most expedient time possible and without unreasonable delay” after discovering the breach. The exact timeframe is not specified, but the notification should be made as quickly as possible, considering the need to determine the scope of the breach and restore the integrity of the system.

Exceptions: Notification may be delayed if a law enforcement agency determines that notification would impede a criminal investigation. However, once law enforcement gives the go-ahead, notification must be provided immediately.

Content of Notification:

The notification must include:

Description of the Incident: A general description of what happened, including the date of the breach and the types of personal information involved.
Business Contact Information: Contact details for the business, such as a toll-free number, email address, or physical address, where individuals can obtain more information.
Steps Taken: A summary of the steps the business has taken to address the breach, such as closing the vulnerability, enhancing security, or recovering the compromised data.
Advice on Protection: Recommendations for what affected individuals can do to protect themselves from potential harm, such as monitoring their credit reports or placing a fraud alert on their accounts.
Information on Reporting: A reminder that affected individuals can report the breach to the Federal Trade Commission (FTC) or the California Attorney General.

Parties Involved:

Affected Individuals: The primary requirement is to notify the California residents whose unencrypted personal information was compromised in the breach.
California Attorney General: If the breach affects more than 500 California residents, the business must also notify the California Attorney General. This notification can be done online via the Attorney General’s website and must include a copy of the breach notification sent to consumers.
Credit Reporting Agencies: If the breach involves a large number of affected individuals (typically more than 1,000), the business may also need to notify credit reporting agencies.

Method of Notification:

Written Notice: Usually via postal mail.
Electronic Notice: If the business primarily communicates with the individual electronically or if the individual has consented to electronic communication.
Substitute Notice: If the cost of providing notice exceeds $250,000, or if the affected individuals exceed 500,000, or if the business lacks sufficient contact information, substitute notice may include email, a conspicuous posting on the business’s website, and notification to major statewide media.

Penalties for Non-Compliance

Non-compliance with the CCPA’s data breach notification requirements can lead to significant penalties and enforcement actions, underscoring the importance of adhering to the law. If a business fails to notify affected individuals or the California Attorney General (when applicable) of a data breach in a timely manner, it can face substantial fines imposed by the state. These fines can reach up to $7,500 per intentional violation, and $2,500 per unintentional violation. Given that each affected individual counts as a separate violation, these penalties can quickly accumulate, leading to potentially millions of dollars in fines for large-scale breaches.

In addition to state-imposed fines, the CCPA allows affected consumers to bring private lawsuits against businesses for certain types of breaches. Consumers can seek statutory damages ranging from $100 to $750 per incident, or actual damages if they can prove a higher loss. The law doesn’t require consumers to prove that they suffered actual harm to claim statutory damages, making it easier for them to seek redress. This provision serves as a powerful incentive for businesses to maintain robust data protection practices.

The California Attorney General also plays a crucial role in enforcing the CCPA. The Attorney General can bring actions against businesses for non-compliance, potentially leading to court orders requiring companies to remedy their violations and pay fines. To avoid these penalties, businesses must ensure they have proper security measures in place and follow all notification requirements promptly and accurately. Non-compliance not only brings legal and financial risks but also can severely damage a company’s reputation, eroding consumer trust and impacting business operations.

Canada (Personal Information Protection and Electronic Documents Act – PIPEDA)

Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) is a federal law that sets the ground rules for how private-sector organisations handle personal information during commercial activities. Enacted to balance individuals’ right to privacy with the need for organisations to collect and use data, PIPEDA applies to most businesses across Canada, except in provinces with substantially similar legislation.

Key Features of PIPEDA

Consent-Based Data Handling: Organisations must obtain informed consent from individuals before collecting, using, or disclosing their personal information.
Purpose Limitation: Personal information should be collected for explicit, defined purposes and not used beyond those intentions.
Security Safeguards: Businesses are required to implement appropriate security measures to protect personal data against loss, theft, and unauthorised access.
Transparency and Accountability: Organisations must be transparent about their privacy practices and designate an individual responsible for PIPEDA compliance.
Access and Correction Rights: Individuals have the right to access their personal information held by an organisation and request corrections if necessary.

What does it say about data breaches?

PIPEDA has specific regulations regarding data breaches that organisations must follow to ensure they are handling personal information responsibly and in compliance with Canadian law. Here’s a breakdown of what PIPEDA says about data breaches:

Breach of Security Safeguards – PIPEDA defines a data breach as a “breach of security safeguards,” which refers to any event where personal information is lost, accessed, disclosed, copied, used, or altered without authorisation due to a failure in the organisation’s security measures.

Real Risk of Significant Harm (RROSH) – Organisations must assess whether a breach poses a “real risk of significant harm” to the individuals affected. Significant harm can include bodily harm, humiliation, damage to reputation or relationships, loss of employment, business, or professional opportunities, financial loss, identity theft, and damage to creditworthiness.

The assessment of RROSH is based on:

Sensitivity of the Information: Highly sensitive information (e.g., financial, medical) typically increases the risk.
Probability of Misuse: Whether the breached data is likely to be misused, such as being shared on the dark web or exploited for identity theft.

Mandatory Breach Reporting

Reporting to the Privacy Commissioner: If a breach meets the RROSH threshold, the organisation is required to report it to the Office of the Privacy Commissioner of Canada (OPC). The report must be made “as soon as feasible” after the breach is discovered.
Content of the Report: The report should include details such as the circumstances of the breach, the date or period of the breach, the personal information involved, and the steps taken to mitigate the breach and prevent future incidents.

Notification to Affected Individuals:

If the breach poses a real risk of significant harm, the organisation must also notify the affected individuals as soon as possible. The notification should be clear and direct, informing individuals about:

The nature of the breach.
The information compromised.
Steps the organisation has taken to control or reduce the harm.
What individuals can do to protect themselves, such as monitoring accounts or changing passwords.
Contact information for further inquiries.

Record-Keeping Requirements – PIPEDA requires organisations to keep records of all data breaches, regardless of whether they meet the RROSH criteria. These records must be retained for at least 24 months and made available to the OPC upon request. This requirement ensures transparency and accountability, even for breaches that may not require immediate reporting.

Enforcement and Penalties – Organisations that fail to report a data breach to the OPC, notify affected individuals, or keep proper records can face fines of up to CAD 100,000 per violation. Additionally, the OPC has the authority to investigate breaches and recommend further actions to ensure compliance.

Australia (Privacy Act 1988)

Australia’s Privacy Act 1988 is the primary legislation governing the handling of personal information by Australian government agencies and private sector organisations with an annual turnover exceeding AUD 3 million. The Act establishes the Australian Privacy Principles (APPs), which set standards for the collection, use, disclosure, and storage of personal information. These principles emphasise transparency, accountability, and the protection of individuals’ privacy rights. The Act also covers specific rules for sensitive information, such as health data, and gives individuals the right to access and correct their personal information.

Data Breaches under the Privacy Act 1988:

In 2018, the Privacy Act was amended to include the Notifiable Data Breaches (NDB) scheme, which introduced mandatory reporting requirements for eligible data breaches. Here’s what the Act says about data breaches:

Definition of a Data Breach

A data breach under the Privacy Act occurs when personal information is accessed, disclosed, or lost in a way that is unauthorised or unintended. This could result from cyberattacks, accidental sharing of information, or the loss of devices containing personal data.

Eligible Data Breaches

The Act requires organisations to assess whether a data breach is likely to result in serious harm to any of the individuals whose information was involved. Factors to consider include the sensitivity of the data, the likelihood of misuse, and the potential impact on affected individuals. If the breach is likely to cause serious harm, it is considered an “eligible data breach.”

Mandatory Notification

Organisations must notify both the Office of the Australian Information Commissioner (OAIC) and the affected individuals if an eligible data breach occurs. The notification should be done as soon as practicable after becoming aware of the breach.

Content of Notification

The notification to affected individuals must include:

A description of the breach.
The types of personal information involved.
Recommendations for steps individuals can take to protect themselves.
Contact information for further inquiries.

The notification to the OAIC should include similar details, along with the organisation’s response to the breach and any measures taken to prevent future incidents.

Exceptions to Notification

Notification may not be required if the organisation takes remedial action before the data is accessed or disclosed, and the action prevents serious harm to affected individuals.

Penalties for Non-Compliance

Non-compliance with the NDB scheme can result in significant penalties. The OAIC has the authority to investigate breaches and, in cases of serious or repeated non-compliance, can impose fines of up to $2.5 million for individuals and up to $50 million for organisations.

Key Differences and Similarities

When comparing data breach provisions across the GDPR (EU), CCPA (California), PIPEDA (Canada), and Privacy Act 1988 (Australia), several key differences and similarities emerge:

Key Similarities

Mandatory Breach Notification

The Acts require organisations to notify relevant authorities and affected individuals when a data breach occurs, particularly if the breach poses a significant risk to individuals’ rights and freedoms. In addition, each law mandates that the notification include specific details about the breach, the nature of the compromised data, the potential risks, and recommended steps for individuals to protect themselves.

Focus on Protecting Personal Information

All the laws are centered around protecting personal information. They all define a data breach as unauthorised access, disclosure, or loss of personal data, with a strong emphasis on maintaining the security and integrity of this data.

Risk Assessment

GDPR, PIPEDA, and Privacy Act 1988, require organisations to assess the risk level of a data breach, particularly in terms of the potential harm it could cause to affected individuals. The CCPA, while not explicitly mandating a formal risk assessment, still emphasises the importance of mitigating harm to individuals.

Enforcement and Penalties

The laws impose also penalties for non-compliance with data breach reporting requirements. These penalties can include significant fines and other sanctions, demonstrating the serious consequences of failing to adhere to data protection standards.

Key Differences

Scope and Applicability:

GDPR applies to all organisations processing personal data of EU residents, regardless of where the organisation is based.
CCPA is specific to California and applies to businesses that meet certain criteria, such as annual revenue or data processing volume.
PIPEDA applies to most private-sector organisations in Canada, with some exceptions for provinces with similar legislation.
Privacy Act 1988 covers Australian government agencies and private organisations with a turnover exceeding AUD 3 million.

Threshold for Notification:

GDPR has stringent thresholds, requiring notification when the breach poses a significant risk to individuals’ rights and freedoms (GDPR) or serious consequences.
CCPA requires notification of any breach involving unencrypted personal data, without a specific threshold for harm.
PIPEDA mandates reporting if there is a “real risk of significant harm.”
Privacy Act 1988 (Australia) requires notification if the breach is likely to result in serious harm.

Data Subject Rights

GDPR provides extensive rights to individuals, including the right to access, correct, delete, and object to the processing of their data. These rights are less emphasised in the CCPA, PIPEDA, and Privacy Act 1988, although they still grant individuals some level of control over their personal data.

Notification Timing

GDPR requires notification to authorities within 72 hours of becoming aware of the breach.
Privacy Act 1988 emphasises prompt reporting without a specific timeframe but stress that it must be done “as soon as practicable.”
CCPA and PIPEDA also require timely notification but are more flexible in terms of exact timing.

Penalties

GDPR imposes the highest penalties, with fines up to 4% of global annual turnover or €20 million, whichever is higher.
CCPA includes fines of up to $7,500 per violation.
PIPEDA and Privacy Act 1988 have more modest penalties, with fines up to CAD 100,000 per violation under PIPEDA and up to$2.5 million and $50 million for individuals and organisations respectively under the Privacy Act 1988.

Challenges and considerations for multinational companies

For multinational companies, they face several challenges and considerations when navigating the complex landscape of global data protection laws, particularly with regard to data breaches. Some of them include;

Diverse Legal Requirements

Multinational companies must comply with the data protection laws of each country in which they operate. This means understanding and adhering to the specific requirements of laws such as GDPR, CCPA, PIPEDA, and the Privacy Act 1988. The diversity in legal requirements, especially regarding what constitutes a data breach, notification timelines, and penalties, can be overwhelming.

In addition, different jurisdictions have different definitions of what constitutes a data breach and varying thresholds for when notification is required, thereby, making it challenging to establish a one-size-fits-all compliance strategy.

Managing Cross-Border Data Transfers

Multinational companies must navigate various legal mechanisms for cross-border data transfers, such as Standard Contractual Clauses (SCCs) under the GDPR or data transfer agreements. Ensuring that these mechanisms are in place and legally sound across all jurisdictions can be a significant challenge.

Coordination of Incident Response

Coordinating a data breach response that meets the notification requirements of multiple jurisdictions is complex. Companies must ensure they notify the appropriate authorities and affected individuals within the prescribed timelines, which can vary significantly from one jurisdiction to another.

Also, multinational companies must develop unified incident response plans that account for the legal nuances of each jurisdiction. These plans should include clear procedures for identifying, assessing, and responding to data breaches, including communication strategies for both internal and external stakeholders.

Regulatory and Enforcement Risks

Multinational companies are often subject to heightened regulatory scrutiny due to their size and the scale of their data processing activities. Non-compliance with data protection laws can result in substantial fines, as seen with the GDPR, where penalties can reach millions of dollars. Beyond legal penalties, data breaches can cause significant reputational damage, affecting customer trust and loyalty. Multinational companies must be prepared to manage public relations and rebuild trust in the aftermath of a breach, which is especially challenging in a global context.

Data Subject Rights and Cultural Considerations

Different jurisdictions grant different levels of rights to data subjects, such as the right to access, correct, or delete their data. Multinational companies must ensure that they respect and fulfill these rights across all regions, which requires sophisticated data management systems.

Companies must also consider cultural differences in how data privacy is perceived and valued. What is considered a serious breach in one country may not be viewed the same way in another, influencing how companies handle breaches and communicate with affected individuals.

Resource Allocation and Expertise

Multinational companies must invest in specialised legal and compliance teams with expertise in the data protection laws of each jurisdiction. These teams are essential for interpreting complex regulations, ensuring compliance, and responding effectively to breaches.

Also, the cost of maintaining compliance across multiple jurisdictions is significant, involving investments in legal expertise, technology, training, and regular audits. Companies must balance these costs against the potential risks and penalties of non-compliance.

Final thought

Companies must navigate a highly complex and fragmented regulatory landscape when dealing with data breaches. They need to balance compliance with varying legal requirements, manage cross-border data flows, coordinate effective incident responses, and mitigate regulatory and reputational risks. Developing robust, globally-aligned data protection and breach response strategies, while remaining flexible enough to adapt to local laws and cultural nuances, is crucial for these companies to operate successfully on the global stage.