The General Data Protection Regulation (GDPR) has significantly strengthened data protection laws and introduced stricter requirements for organisations handling personal data. One common question that arises is whether all breaches of GDPR need to be reported to the Information Commissioner’s Office (ICO). In this blog, we will explore the circumstances under which breaches must be referred to the ICO and provide clarity on when reporting is necessary.
Understanding the ICO’s Reporting Requirements:
Under GDPR, organisations are required to report certain types of personal data breaches to the ICO. However, not all breaches need to be reported. The ICO’s reporting requirements are based on the potential risks to individuals’ rights and freedoms.
- Breaches with a High Risk:
Organisations must report breaches to the ICO if they are likely to result in a risk to individuals’ rights and freedoms. This includes breaches that may lead to significant harm, such as identity theft, financial loss, discrimination or reputational damage. The ICO should be notified within 72 hours of becoming aware of the breach.
- Exceptions to Reporting:
Not all breaches need to be reported to the ICO. There are certain exceptions where reporting is not required, even if there is a breach of personal data. These exceptions include:
Low Risk to Individuals: If the breach is unlikely to result in a risk to individuals’ rights and freedoms, reporting may not be necessary. However, organisations should still document the breach and keep a record of their decision-making process.
Adequate Protection Measures: If the breach is unlikely to result in a risk to individuals due to the implementation of appropriate protection measures (e.g., encryption), reporting may not be required. However, organisations should still assess the risks and document their decision.
Infeasible Reporting: If reporting is not feasible within the 72-hour timeframe due to the complexity of the breach, organisations should provide a reasoned justification for the delay when reporting to the ICO.
Importance of Documentation:
Regardless of whether a breach needs to be reported to the ICO, it is crucial for organisations to document all breaches. Documentation should include details of the breach, the potential risks to individuals, the actions taken to mitigate the breach and any decisions made regarding reporting. This documentation is essential for demonstrating compliance and cooperation in case of any inquiries or investigations.
Seeking Professional Advice:
Determining whether a breach needs to be reported to the ICO can be complex. It is advisable to seek legal advice from professionals specialising in data protection and GDPR compliance. They can provide guidance based on the specific circumstances of the breach and help ensure compliance with reporting requirements.
Not all breaches of GDPR need to be referred to the ICO. Reporting is required when breaches are likely to result in a risk to individuals’ rights and freedoms. However, exceptions exist for breaches with low risk or when adequate protection measures are in place. Regardless of reporting requirements, organisations should document all breaches and take appropriate actions to mitigate risks and protect individuals’ data. Seeking professional advice can help navigate the complexities of GDPR compliance and ensure that reporting obligations are met effectively.
Are you worried about compliance with GDPR? Why not contact one of Alexander JLO’s expert commercial lawyers on 020 7537 7000 or email peter@london-law.co.uk for a free no obligation consultation and see what we can do for you?
This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 22nd February 2024 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of the capital’s leading commercial lawyers and acts for small business to multinational PLC’s alike. His profile on the independent Review Solicitor website can be found Here