“Another breach in the wall” – the Polish DPA’s views regarding data security and notifying data breaches under the GDPR
After receiving a third-party tip regarding a controller's loss of electronic records due to a ransomware attack—which included employee personal data and information on security officers employed by the Company—the Polish DPA, they sought further clarification from the controller. In response, the controller acknowledged a ransomware attack that had locked access to the controller’s employee data. Lacking decryption capabilities, the controller opted against system interference. Notably, the controller did not report this incident to the DPA, viewing it as falling outside the scope of a data protection breach defined by the GDPR. Despite losing access to digital records due to the ransomware, the Company insisted that data access was blocked, not lost. They argued that this did not constitute a data breach under the GDPR ), as internal analysis indicated that no external data transfer had occurred, thus not requiring notification. The supervisory authority noted that the controller’s compliance with administrative proceedings was less than ideal. There were instances of unsigned letters and unresponsive communication.
The Polish DPA's Decision
According to the Polish DPA, the Company has fallen short of its obligations related to data protection, particularly Articles 24(1), 25(1), 32(1)(b), and 32(2) of GPDR, as It failed to exhibit that it adequately assessed the level of security about the risks associated with data processing. T The controller’s selected security measures were proven insufficient, leaving its systems vulnerable to cyber-attacks like ransomware, a predicament that has unfortunately been realized in this case.
The evidence collected by the Polish DPA suggested that the company might have failed to conduct a proper risk analysis, which is essential for defining security measures. Without an accurate risk analysis, the implemented security measures may not align with the actual risks, increasing the probability of a breach.
In the Polish DPA's opinion, this was evident when the controller’s IT system, used for data processing, was compromised, leading to the encryption of stored data due to malware. The information provided by the Company regarding the security measures it has implemented could have been more organized and more organized, leaving it unclear whether these measures met the necessary standards. In this specific case, without needing an external audit, it is apparent that the controller’s security measures were inadequate. The scale of personal data processed by the company demanded high security, which needed to be met. This breach and the response to it demonstrated glaringly the inadequacy of the meassures introduced by the controller.
For the Polish DPA, security measures for ensuring data integrity and availability cannot be chosen arbitrarily. They must correspond to the nature of the data and the associated risks. Therefore, in light of this case, it is essential for companies to rigorously conduct risk analyses and implement robust security measures to safeguard personal data and comply with legal obligations effectively.
Moreover, the controller’s prior data backup protocols did not fulfil the requirements under Article 32(1)(b) and (c) of the GDPR, which requires ensuring constant availability of processing systems and services and the rapid restoration of personal data access in the event of an incident. The dialogue on security measures prompts a reminder: a controller's responsibility isn't confined to the initial establishment and implementation of data protection measures. Continuous verification of these measures is paramount, especially when personal data is processed electronically.
For the Polish DPA, the controller's inability to conclusively determine whether unauthorized access to the compromised data occurred, a palpable risk exists to the rights and freedoms of the affected individuals. The controller should have notified the DPA about the breach.
Taking above into consideration the Polish DPA decided to impose the fine on the controller in the amount of 47.160,- PLN (approx. € 10,000)
The whole decision is available here in Polish
Article provided by INPLP member: Xawery Konarski and Mateusz Kupiec (Traple Konarski Poderecki & Partners, Poland)
Dr. Tobias Höllwarth (Managing Director INPLP)