OAIC data breach guidelines emphasise importance of notification

Notification of data breaches should be one of the four key steps organisations undertake in response to any detected breach, new guidelines from the Office of the Australian Information Commissioner (OAIC) recommend.

The new guidelines – recently published in the OAIC's Data Breach Notification Guide – are designed to help companies comply with the stricter legislative requirements around protection of personally identifiable information (PII) introduced in March.

Those four steps, as outlined in the guide, include containing the breach and performing a preliminary assessment; evaluating the risks associated with the breach; notification of the breach; and preventing future breaches.

The guide is built around scenarios that highlight the application of particular questions that organisations need to ask themselves about the data they're handling – including questions such as whether the PII allows the identity of individuals to be ascertained, whether the information is sensitive, and how it could be misused.

Reporting of the data breaches to the OAIC is “strongly encouraged...where the circumstances indicate that it is appropriate to do so” – based on a consideration of factors such as whether applicable legislation requires notification; the type of information involved and whether there is a real risk of serious monetary or non-monetary harm from the loss.

Other factors to consider in deciding whether to report a breach to the OAIC include whether a large number of people were affected by the breach; whether the information was fully recovered without further disclosure; whether the affected individuals have been notified; and if there is a reasonable expectation that the OAIC may receive complaints or enquiries about the breach.

Police, insurers, credit card companies, professional bodies, and other internal or external parties should also be notified in certain circumstances, the guidelines advise. Proactive steps to prevent future breaches – including audits of physical and technical security, policies and procedures, employee training and service delivery partners – are also advised.

The inclusion of formal steps around the notification of data breaches is significant in the context of ongoing discussions as to whether Australia will follow the lead of other jurisdictions around the world and mandate notification of data breaches. Some 45 US states, for example, have such laws although that country has yet to duplicate the requirements at a federal level.

While there is still no legal burden to do so, the OAIC's new guidelines say that notification is “highly recommended” and that “in general, if there is a real risk of serious harm as a result of a data breach, the affected individuals and the OAIC should be notified.”

“Notification of a data breach supports good privacy practice,” the guide states. “Notification can be a way of demonstrating to the public that an agency or organisation takes the security of personal information seriously, and is working to protect affected individuals from the harms that could result from a data breach.”

Other benefits of notification include its role as a “reasonable security safeguard”, a sign of “openness about privacy practices”, and a way of “restoring control over personal information.”

This article is brought to you by Enex TestLab, content directors for CSO Australia.

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