DPI16_Banner_300x250 WITH COPY

Eduardo Ustaran

Q Are there any EU requirements to notify consumers of a security breach and have there been any breaches there to date?

A This is one of the most frequent questions being asked by North American privacy lawyers these days. From a U.S. point of view, this is an obvious issue to explore given the frantic trend to pass laws similar to California's Security Breach Information Act. This piece of legislation, which was adopted more than three years ago, was a sleeping giant until early 2005 after the ChoicePoint breach. The rest is history. The adoption of laws requiring the notification of breaches to the people affected - or potentially affected - is likely to continue as more states follow California's lead.

However, in the EU, there is only an obligation under Article 17 of the data protection directive that requires the adoption of appropriate technical and organizational measures to protect personal data against security breaches. This is an overarching obligation that demands an appropriate level of security. A contravention of this requirement is a serious matter. In fact, registration requirements concerning security measures in Italy and Spain aside, this is probably one of the provisions of the EU data protection directive that has been implemented more uniformly across member states. However, a simple, negative answer is likely to be met with disbelief by U.S. lawyers, so the question merits a slightly deeper analysis of the EU directive to check whether this type of obligation is actually hidden somewhere.

One possibility to consider is Article 10 of the EU data protection directive, known as the Information Provision Obligation, often seen as the cornerstone of the whole European data protection regime. This obligation is relatively open-ended and refers to the provision of information about the recipients or categories of recipients of the data. It has been suggested that the fact that data has been lost or stolen merits a notification to those affected under this obligation. However, the point of Article 10 is to enable people to make an informed decision as to whether they are happy for the controller organization to have and use their personal information, so turning that into a disclosure requirement following a breach seems to be stretching the law.

On balance, the scope of Article 10 is probably not clear enough to say for sure that following a security breach, European organizations are obliged by virtue of that article to notify individuals. The same applies to the even more generic fairness requirement of Article 6. On the face of the letter of the law, the answer continues to be that EU law does not impose notification obligations following a breach. Indeed, security breaches involving the loss of data are not normally followed by a public notification. Therefore, the only breaches that tend to be revealed are those which receive media coverage - as in the case of a glitch that exposed the passwords of customers of credit card provider Egg during the upgrade of its online security measures at the end of 2005 - or incidents reported by the enforcement authorities.

One notable exemption was the loss of employee data at UK public sector body Jobcentre earlier this year, which was followed by a carefully planned "damage mitigation campaign" that included notifications and regular updates to those affected. This also prompted considerable media attention, but Jobcentre's swift reaction contributed to avoid enforcement action by the regulator.

Before ruling out this type of obligation in Europe, one should look again at the obligations under Article 17 of the EU data protection directive. One of the obvious implications of Article 17 is that any measures adopted must be maintained and re-visited on an ongoing basis. Those measures clearly are not limited to having physical security and firewall technology, but will cover any feasible step to protect the data.

Given that communicating a security breach involving loss of data is likely to contribute to the protection of individuals, there is a strong argument to say that operating a prompt notification procedure following breaches is legally required in the EU and that type of measure should be part of any sensible information security policy. This approach is likely to become the norm in the near future in the EU irrespective of any more explicit notification obligations.

Eduardo Ustaran is a partner in the Privacy & Information Law Unit at London law firm Field Fisher Waterhouse and can be reached at


This e-mail address is being protected from spam bots, you need JavaScript enabled to view it


This response represents the personal opinion of our expert (and not that of his/her employer) and cannot be considered to be legal advice. If you need legal advice on the issues raised by this question, we recommend that you seek legal guidance from an attorney familiar with these laws.


If you want to comment on this post, you need to login.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

Find a KnowledgeNet Chapter Near You

Network and talk privacy at IAPP KnowledgeNet meetings, taking place worldwide.

Women Leading Privacy

Events, volunteer opportunities and more designed to help you give and get career support and expand your network.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

The Training Post—Can’t-Miss Training Updates

Subscribe now to get the latest alerts on training opportunities around the world.

New Web Conferences Added!

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Staff

Get your team up to speed on privacy by bringing IAPP training to your organization.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.

Learn more about IAPP certification »

Get Close-up

Looking for tools and info on a hot topic? Our close-up pages organize it for you in one easy-to-find place.

Where's Your DPA?

Our interactive DPA locator helps you find data protection authorities and summary of law by country.

IAPP Westin Research Center

See the latest original research from the IAPP Westin fellows.

Looking for Certification Study Resources?

Find out what you need to prepare for your exams

More Resources »

GDPR Comprehensive: Spots Going Fast

With the top minds in the field leading this exceptional program, it's no wonder it's filling quickly. Register now to secure your spot.

Be Part of Something Big: Join the Summit

Registration is open for the Global Privacy Summit 2016. Discounted early bird rates available for a short time, register today!

Data Protection Intensive Returns to London

Registration is now open for the IAPP Europe Data Protection Intensive in London. Check out the program!

P.S.R. Call for Speakers Open!

P.S.R. is THE privacy + cloud security event of the year, and you can take a leading role. Propose a session for this year's program.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

Exhibit at an Event

Put your brand in front of the largest gatherings of privacy pros in the world. Learn more.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»