If your company requests or stores customer information internally or on the web, these new Mandatory Data Breach Notification Laws could apply to you! Our trusted advisors at Cooper Mills Lawyers have prepared this summary to help us all out…
The federal data breach notification law comes into force on 22 February 2018. The law makes it mandatory for businesses who are bound by the Privacy Act to self-report certain types of data breaches. Here are ten things you need to know about the new law.
1) Mandatory data breach notification is law
The data breach notification requirement is not a recommendation or a code or a guideline – it’s law. It comes into full force on 22 February 2018. Applicable businesses must comply with the law from that date.
2) The law applies to certain businesses
The data breach notification law applies to businesses (and not-for-profits) who are bound by the Privacy Act 1988 (Cth). This includes businesses who have an annual turnover of $3 million or more, health service providers, credit providers, credit reporting bodies and businesses who trade in personal information.
3) Certain data breaches must be notified
Where there is unauthorised access, unauthorised disclosure or loss of personal information that is likely to result in serious harm to a person, a business must notify the affected person/s and the Australian Information Commissioner. The new law makes notification mandatory.
4) Suspected data breaches must be investigated
If a business suspects a data breach has occurred, it must investigate to determine if the data breach needs to be notified. The new law says that businesses can’t ignore suspected data breaches or turn a blind eye.
5) “Serious harm” is not just about credit card numbers
The key trigger that makes a data breach notifiable is that it is likely to result in “serious harm” to a person. Serious harm can include financial, physical, psychological, emotional and reputational harm.
6) Notification is not just a form-filling exercise
A data breach notification must provide not only the details of the data breach but also recommendations on what affected people should do to minimise the risk of serious harm. Providing recommendations may require getting specialist advice (e.g. from IT, security, fraud experts).
7) Effective remedial action removes the need for notification
A business does not need to notify a data breach if it takes timely remedial action that prevents the likelihood serious harm. For example, the timely remote deletion of data from a lost laptop may be remedial action that prevents the risk of serious harm.
8) Businesses need to talk to their outsourced providers
Outsourcing providers (e.g. outsourced billing, support or marketing providers) are likely to hold a business’ data. Businesses and their outsourced providers need to work out the responsibilities, arrangements, procedures and liability for dealing with a data breach.
9) Non-compliance can have legal consequences
Non-compliance with the data breach notification law can have serious consequences.The potential consequences of not complying with the data breach notification law include regulatory investigation, orders to pay compensation and substantial civil penalties.
10) Businesses need to prepare for the law now
If the mandatory data breach notification law applies to your business, you should prepare for it now. Having the necessary knowledge and understanding about the new law and how it works is essential.
If you’d like to discuss your situation with us, please get in touch.
Or, for formal legal advice to prepare you for these laws please contact our trusted advisor, Erhan Karabardak on 1300 158 788 or [email protected]
Expert Lawyers specialising in Telecommunication, Technology, Domain Name & Trademark Law.