IAPP-GDPR Web Banners-300x250-FINAL

By Jan Dhont

Information Security Notification Laws on the Horizon

Compared to their American colleagues, European privacy professionals have been somewhat spared from the headaches caused by information security breach notification requirements. There are, however, signs on the horizon that this tranquil European climate is about to change. The proposed amendments to the Electronic Communications Privacy Directive 2002/58—already introduced in the autumn of last year—impose security breach notification obligations for network operators and Internet service providers.

The Article 29 Working Party stated in 2006 that it was in favor of security breach notification obligations, not only for ISPs and network operators, but also for certain content and information service providers such as data brokers, online banks and other online service providers. In an opinion of April 10, 2008, the European Data Protection Supervisor (EDPS) endorsed the Working Party's position by putting its political weight behind the proposal.

The proposed amendments to the Electronic Communications Privacy Directive 2002/58 require ISPs, telecom operators and other providers of publicly available electronic communications services to notify their clients and the national regulatory authority of information security breach incidents. As the text is currently formulated, the exact triggers and modalities of the notification obligations stand in penumbra. According to the proposed texts, electronic communications service providers would need to give notice of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to personal data transmitted, stored or otherwise processed in connection with the provision of electronic communication services. Electronic communication service providers would need to (i) explain to their clients the type of breach, and (ii) provide recommendations for the reduction of the potential negative effects of security incidents. Furthermore, electronic communications service providers would be bound to inform national regulatory authorities about (i) the consequences of the breach, and (ii) the actions taken by the service provider to "address the breach."

The position of the EDPS is likely to speed up the introduction of security breach notification measures in the EU. The EDPS—represented in the Working Party—shares the view that such measures "reinforce […] the accountability of organizations, [are] a factor that drives companies to implement stringent security measures, and […] permit the identification of the most reliable technologies towards protecting information." The EDPS formally endorses the view of the Working Party that notification requirements should be imposed upon certain information services providers such as online banks, online businesses and e-health service providers. Moreover, the broadening of the scope of the notification requirements beyond the electronic communication services industry appears, indeed, to be the next logical step in the legislative process. Specifically, it can be expected that all industry sectors that process sensitive data (e.g. insurance companies, health sector and pharmaceutical companies, etc.) will be "served" next. The EDPS puts it as follows: "The EDPS views this obligation and its application to both [electronic communication service providers] and information society service providers as a first step of a development which may eventually be applied to all data controllers in general."

The information security measures as currently formulated in the proposal are not an example of legislative precision; for instance, it is not entirely clear exactly what incidents qualify as security breaches, the conditions and timing under which notices must be served, etc. These operational aspects will be dealt with in separate secondary legislation. It can only be hoped that political consensus can be reached on such implementation measures that are granular enough to allow service providers to roll-out pan-European action plans. Leaving too much latitude to the EU member states risks compromising harmonization and would add an unnecessary level of complexity to pan-European security breach notification strategies.

It is expected that public consultations will be organized by the Commission for the purpose of learning from (mainly U.S.) industry's experience in this field, as well as from public actors such as Data Protection Authorities and the European Network and Information Security Agency (ENISA).

The exact parameters of the change with respect to breach notifications in Europe will become clear in the months to come. The proposed amendments are, however, not yet final. The council was casted to debate the text on June 12, 2008 and the European Parliament will hold a first reading on July 8, 2008.

Jan Dhont is a partner at Lorenz in Brussels. Reach him at j.dhont@lorenz-law.com.


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

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Advertise in IAPP Publications

Find out how to get your message in front the people you want to reach. Download a media kit now.

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: Registration Open

New! Intensive two-day GDPR training led by the sharpest minds in the field. It's a can't-miss event.

The Congress Is Cancelled

The IAPP Europe Data Protection Congress 2015 is cancelled. Click through to learn more.

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»