Article 34 GDPR

← Article 34 - Communication of a personal data breach to the data subject →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 34 - Communication of a personal data breach to the data subject

1. When the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall communicate the personal data breach to the data subject without undue delay.

2. The communication to the data subject referred to in paragraph 1 of this Article shall describe in clear and plain language the nature of the personal data breach and contain at least the information and measures referred to in points (b), (c) and (d) of Article 33(3).

3. The communication to the data subject referred to in paragraph 1 shall not be required if any of the following conditions are met:

(a) the controller has implemented appropriate technical and organisational protection measures, and those measures were applied to the personal data affected by the personal data breach, in particular those that render the personal data unintelligible to any person who is not authorised to access it, such as encryption;

(b) the controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects referred to in paragraph 1 is no longer likely to materialise;

(c) it would involve disproportionate effort. In such a case, there shall instead be a public communication or similar measure whereby the data subjects are informed in an equally effective manner.

4. If the controller has not already communicated the personal data breach to the data subject, the supervisory authority, having considered the likelihood of the personal data breach resulting in a high risk, may require it to do so or may decide that any of the conditions referred to in paragraph 3 are met.

Relevant Recitals

Recital 87: Timing and Result of Notification

It should be ascertained whether all appropriate technological protection and organisational measures have been implemented to establish immediately whether a personal data breach has taken place and to inform promptly the supervisory authority and the data subject. The fact that the notification was made without undue delay should be established taking into account in particular the nature and gravity of the personal data breach and its consequences and adverse effects for the data subject. Such notification may result in an intervention of the supervisory authority in accordance with its tasks and powers laid down in this Regulation.

Recital 88: Notification Rules and Procedures

In setting detailed rules concerning the format and procedures applicable to the notification of personal data breaches, due consideration should be given to the circumstances of that breach, including whether or not personal data had been protected by appropriate technical protection measures, effectively limiting the likelihood of identity fraud or other forms of misuse. Moreover, such rules and procedures should take into account the legitimate interests of law-enforcement authorities where early disclosure could unnecessarily hamper the investigation of the circumstances of a personal data breach.

Commentary

Article 34, paragraph 1, GDPR imposes a new obligation on the controller to inform affected data subjects of a data breach which is likely to result in a high risk to the rights and freedoms of natural persons. Paragraph 2 describes the linguistic requirements the information should have ("clear and plain language"), its purpose (describing the nature of the breach) and minimum content (contact points, consequences, actions taken or otherwise planned). Paragraph 3 rules out the information obligation under specific circumstances. For example, the controller has implemented appropriate technical and organisational measures to exclude any harm. Finally, paragraph 4 describes the powers of the supervisory authority which may force the controller to inform the data subjects or, alternatively, exempt it from such action if one of the requirements stated in paragraph 3 is met.

(1) Communication of a personal data breach to the data subject

Under Article 34(1) GDPR, the controller, without undue delay, communicates the personal data breach to data subjects when it is likely to result in a high risk to the rights and freedoms of natural persons. This provision carries both theoretical and practical importance. On one hand, it acknowledges the individual's subjective right to be informed about the security of their personal data. On the other hand, it enables data subjects to make strategic choices to safeguard their personal sphere. For example, they may choose to close their account with the data controller due to inadequate security measures or block their credit card if it has been compromised in the breach.

When the personal data breach

“Personal data breach” should be defined from the outset, before establishing the point at which a controller has a duty to notify the competent supervisory authority of such a breach.

Is likely to result in a high risk to the rights and freedoms of natural persons

Article 34(1) GDPR differs from Article 33 GDPR. Instead of having to notify the supervisor authority of a breach that leads to any kind of risk to data subjects, the controller only has the obligation to communicate a breach to them where it may lead to a “high risk to the rights and freedoms of natural persons”. The threshold for communicating the breach to data subjects concerned is therefore higher than in Article 33 GDPR. This choice has been argued to be reasonable, both from the perspective of the controller and the data subject. On the one hand, no absolute and cumbersome report obligation is imposed on the controller, unless circumstances are particularly serious. On the other hand, this higher threshold was deemed necessary to avoid data subjects to suffer from a “fatigue” caused by the receipt of warnings for every breach of the GDPR. The controller has therefore to assess the level of risk which may ensue to data subjects as a result of a breach. According to the EDPB, whether a data breach creates a "high risk" should be assessed in light of the specific circumstances in each case. As with Article 33 GDPR, this is an objective assessment conducted on the basis of the likelihood and severity of a negative impact on the rights and freedoms of natural persons. Examples of "high risk" situations include, inter alia, a cyberattack on an online marketplace where usernames, passwords and purchase history are made public; a cyberattack on a hospital resulting in medical records being made inaccessible; or where personal data was mistakenly sent to a wrong mailing list (with over a thousand recipients). However, Bensoussan correctly suggests that the enforcement of Article 34 GDPR is likely to be difficult as the controller is the entity making the assessment of the level of the risk.

The controller

The reporting obligation outlined in paragraph 1 applies to the data controller, encompassing both natural persons and public or non-public entities as defined in Article 4(7). In cases where multiple controllers jointly determine the purposes and means of processing as defined in Article 26 of the GDPR, each controller is responsible for reporting their own data breaches as well as those of the other controller(s). However, it is possible for the controllers to establish a different arrangement regarding the reporting obligations through an agreement on joint responsibility as required under Article 26(1) of the GDPR.

Implications for a data processor

There are no specific obligations imposed on processors relating to the communication of the breach to data subjects. Under Article 33(2) GDPR, processors have to notify controllers “without undue delay” where they identify a personal data breach. However, any additional obligation to notify data subjects of a “high risk” to their rights and freedoms only falls upon the controller. Article 28(3) GDPR nonetheless explains the role of processors in such situations. According to the provision, services provided to a controller by a processor must be “governed by a contract or other legal act”. In addition, Article 28(3)(f) GDPR specifically requires that this contract or legal act stipulates that the processor “shall” support the controller in ensuring compliance with obligations found under Article 32 to 36 GDPR. Thus, a contract between these parties can specify how the processor can support the controller in respecting the latter’s obligation to communicate the breach as per Article 34 GDPR.

Shall communicate the breach to the data subject

The affected data subjects should be directly notified of the relevant breach. When communicating a breach to data subjects, dedicated messages should be utilized, separate from regular updates, newsletters, or standard messages. This approach ensures clear and transparent communication of the breach. Transparent communication methods include direct messaging via email, SMS, or direct message, prominently displayed website banners or notifications, postal communications, and prominent advertisements in print media. It should be noted that issuing a notification solely through a press release or corporate blog would not effectively communicate the breach to individuals. Controllers are in the best position to determine the most suitable contact channel for communicating a breach to individuals, especially if they have regular interactions with their customers. However, it is crucial for controllers to exercise caution when selecting a contact channel, as using a channel compromised by the breach could potentially enable attackers to impersonate the controller.

Without undue delay

Another requirement established by Article 34(1) GDPR is that controllers must notify data subjects of a data breach “without undue delay” - in other words, given the likelyhood of high risks for the data subject (see above), as “as soon as possible” or “as soon as reasonably feasible” (within the meaning Recital 86 GDPR). However, Article 34 GDPR does not provide a specific deadline of 72 hours as is the case in Article 33 GDPR. Instead, timelines will be assessed depending on the nature and gravity of the breach itself, as well as the level of risk to natural persons. This is apparent from Recital 86 GDPR, which provides an example of a scenario where the timeliness condition will be different: “the need to mitigate an immediate risk of damage would call for prompt communication with data subjects whereas the need to implement appropriate measures against continuing or similar personal data breaches may justify more time for communication.” Similarly, Recital 88 GDPR indicates that communication to data subjects may be delayed to preserve the integrity of an investigation led by a law-enforcement authority into the circumstances of the breach.

(2) Minimal requirements of the controller's communication to the data subject

The communication to the data subjects must enable them to take any steps to protect themselves. and must contain a description in "clear and plain language" of the (a) “nature” of the breach as well as the other elements outlined in Article 33(3)(b)-(d) GDPR. Namely, (b) the name and contact details of the data protection officer or other contact point where more information can be obtained; (c) the likely consequences of the data breach; and (d) the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

(a) Nature of the personal breach

The communication must describe the type of data breach occurred. It is interesting to note a distinction in relation to Article 33(3)(a) GDPR. Such provision requires the controller, in addition to describing the nature of the breach, to provide the SA with further details including the categories of data subjects, records involved, as well as their respective numbers. These additional elements are not required in the communication to the data subjects under Article 34(2) GDPR. This is a reasonable choice since, generally, data subjects do not need to know these specific details in order to make informed decisions regarding the breach.

(b) Point of contact

The communication must include the contact details of the data protection officer or other contact point where further information can be obtained. Alternatively, the controller may provide details of a “point of contact” capable of sharing further information should the supervisory authority require it. The urgent nature of the communication - considering that it is mandatory only in cases of "high risk" to the data subject - requires that the contact point can be easily and directly reached. Consequently, obstructive methods that, for example, require the requester to navigate complex online systems to establish contact are not permissible at this stage. In such cases, an email address seems more appropriate.

(c) Consequence of the breach

Generally, we refer to the comment made for Article 33(3)(c) of the GDPR. The communication shall use clear language and describe the likely consequences of the breach. The use of examples and accessible terminology allows the data subject to immediately understand the risks they are facing and the most appropriate actions to take.

Example: An e-commerce platform experences a cyber attack resulting in the disclosure of user passwords on the web. The communication under Article 34 GDPR should explain to the user, in clear and plain language, that, due to the breach, it will be necessary to change their service password and ensure that the same value is not used to access other services. In such case, the user should be advised to change those passwords as well to prevent further unauthorized access.

(d) Measures taken or proposed

See comment under Article 33(3)(d) of the GDPR.

Additional information

As indicated by the phrase “at least” found under Article 34(2) GDPR, this list of information to be provided to data subjects is non-exhaustive. Recital 86 GDPR outlines that the controller “should” provide “recommendations for the natural person concerned to mitigate potential adverse effects”. The information given to data subjects should therefore enable them to take any “necessary precautions”, which, although not directly mentioned by Article 33(3)(b)-(d) GDPR could be shared as additional information by the controller

(3) Exemptions from the obligation to communicate to the data subject

Article 34(3) GDPR lists three exemptions from the controller’s obligation to communicate the breach to data subjects. As per the accountability principle, controllers are required to provide evidence to the supervisory authority to demonstrate their compliance with one or more of the specified conditions. The EDPB also notes that, athough the communication may not be immediately necessary (if there is no risk to the rights and freedoms of individuals), the situation may evolve over time, and the risk assessment would need to be reassessed accordingly.

(a) The controller has applied “appropriate technical and organisational protection measures”.

Prior to the breach, the controller had implemented suitable technical and organizational measures to safeguard personal data. In particular, these measures aim to make the personal data incomprehensible to unauthorized individuals. One effective approach is the use of advanced encryption techniques or tokenization to protect the personal data. These security measures ensure that even if the data is accessed unlawfully, it remains unintelligible and therefore protected.

Example: An unauthorised person got access to a device where highly sensitive personal data are stored. However, the content of such a device in encrypted. Therefore, even if a data breach occurred theoretically entailing high risks for data subject, the obligation under Article 34(1) is not triggered, as the authorised party will not be able to make use of the data obtained.

(b) The controller takes “subsequent measures” that diminish the likelihood of a high risk

“Subsequent” measures should be interpreted as measures, adopted immediately following a breach, which are able to mitigate the likelihood of the high risk to individuals' rights and freedoms from materializing. For instance, in certain situations, the controller may have promptly identified and addressed the unauthorized access to personal data, preventing any further misuse. However, it is essential to consider the potential consequences of a breach of confidentiality, taking into account the nature of the data involved.

In addition, it must be stressed that after a risk actually materialised the controller can no longer invoke subsequent measures to avoid communication to the data subject. Even if subsequent measures could mitigate damages and reduce further risks, the controller is no longer in the position to evaluate what kind of negative consequences could stem from the original data breach. Therefore, a communication to the people concerned is the most effective way to prevent an even greater impact on their rights and freedoms.

(c) The communication would demand a disproportionate effort from the controller.

Under Article 34(3)(c) GDPR, in cases where notifying the data subject would require a disproportionate effort, the controller is not obligated to inform the individual. The concept of "disproportionate effort" is not explicitly defined in the GDPR. However, it is understood that the effort involved in notifying data subjects relates to the scope of the breach, particularly the number of individuals affected. As the number of affected individuals increases, the communication process becomes more complex proportionally. Nevertheless, since this exception should be interpreted restrictively, the notion of disproportionate effort should be evaluated in relation to the size of the organization and the availability of technical tools for conducting notifications. In other words, a large-scale controller will be expected to allocate greater resources, including the adoption of electronic communication tools capable of handling the notification burden. In such cases, the effort required cannot be deemed "disproportionate". If the effort is in fact "disproportionate", an alternative obligation exists, namely the requirement to publicly disclose the breach, which should be equally effective in ensuring transparency and accountability. The EDPB suggests that “technical arrangements” could nonetheless be taken to ensure that data subjects can access further information upon request.

Other exemptions

It is important to highlight that according to Article 23 GDPR, Union or Member State law may restrict the obligations and rights outlined in Article 34 GDPR. As a result, several Member States have adopted their own rules on communicating a breach to affected data subjects. Further, Recital 86 GDPR provides that the obligation imposed controllers to communicate the breach to data subjects may be affected by the guidance of a Member State’s law-enforcement authority. Recital 88 GDPR goes on to mention that rules and procedures on notification should “take into account the legitimate interest of law enforcement authorities” to ensure that disclosure does not hinder any ongoing investigation of the data breach. However, it should be noted that Recital 88 GDPR refers to “notification” and not “communication”.

(4) Involvement of the supervisory authority

As mentioned previously, the threshold of risk to trigger Article 34 GDPR is higher than in Article 33 GDPR. It is possible to deduce from this condition that wherever controllers have an obligation to communicate a data breach to data subjects under Article 34 GDPR, they will already have notified the relevant supervisory authority in accordance with Article 33(1) GDPR. Thus, since the supervisory authority should be aware of the data breach, it can also be involved in the controller’s procedure for communicating the breach to affected data subjects as required under Article 34(1) GDPR. Accordingly, Article 34(4) GDPR suggests that the SA can play a determinative role in indicating that there is a “high risk” to the rights and freedoms of natural persons. In such case, the authority can instruct the controller to communicate the breach to the affected data subjects. The supervisory authority can also decide whether any of the exemptions under Article 34(3) GDPR apply, relieving the controller from its obligation to communicate the personal data breach to affected individuals. Finally, the supervisory authority’s involvement can include the provision of advice to the controller. This advice can relate to the assessment of the risk to the data subjects. For example, the French DPA (CNIL) provides a tool to help controllers assess the gravity of personal data breaches. The relevant supervisory authority can also provide advice on the method of communicating the breach to data subjects, such as how to identify an adequate channel to notify them, the language to communicate in, and what kind of message to send.

Decisions

→ You can find all related decisions in Category:Article 34 GDPR