4.5.2016
EN
Official Journal of the European Union
L 119/17
aware that a personal data breach has occurred, the controller should notify the personal data breach to the
supervisory authority without undue delay and, where feasible, not later than 72 hours after having become
aware of it, unless the controller is able to demonstrate, in accordance with the accountability principle, that the
personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where such
notification cannot be achieved within 72 hours, the reasons for the delay should accompany the notification
and information may be provided in phases without undue further delay.
(86)
The controller should communicate to the data subject a personal data breach, without undue delay, where that
personal data breach is likely to result in a high risk to the rights and freedoms of the natural person in order to
allow him or her to take the necessary precautions. The communication should describe the nature of the
personal data breach as well as recommendations for the natural person concerned to mitigate potential adverse
effects. Such communications to data subjects should be made as soon as reasonably feasible and in close
cooperation with the supervisory authority, respecting guidance provided by it or by other relevant authorities
such as law-enforcement authorities. For example, 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.
(87)
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.
(88)
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 investi
gation of the circumstances of a personal data breach.
(89)
Directive 95/46/EC provided for a general obligation to notify the processing of personal data to the supervisory
authorities. While that obligation produces administrative and financial burdens, it did not in all cases contribute
to improving the protection of personal data. Such indiscriminate general notification obligations should
therefore be abolished, and replaced by effective procedures and mechanisms which focus instead on those types
of processing operations which are likely to result in a high risk to the rights and freedoms of natural persons by
virtue of their nature, scope, context and purposes. Such types of processing operations may be those which in,
particular, involve using new technologies, or are of a new kind and where no data protection impact assessment
has been carried out before by the controller, or where they become necessary in the light of the time that has
elapsed since the initial processing.
(90)
In such cases, a data protection impact assessment should be carried out by the controller prior to the processing
in order to assess the particular likelihood and severity of the high risk, taking into account the nature, scope,
context and purposes of the processing and the sources of the risk. That impact assessment should include, in
particular, the measures, safeguards and mechanisms envisaged for mitigating that risk, ensuring the protection of
personal data and demonstrating compliance with this Regulation.
(91)
This should in particular apply to large-scale processing operations which aim to process a considerable amount
of personal data at regional, national or supranational level and which could affect a large number of data
subjects and which are likely to result in a high risk, for example, on account of their sensitivity, where in
accordance with the achieved state of technological knowledge a new technology is used on a large scale as well
as to other processing operations which result in a high risk to the rights and freedoms of data subjects, in
particular where those operations render it more difficult for data subjects to exercise their rights. A data