Netherlands: Bill On Notification Of Data Leaks (After Memorandum Of Amendment)

Last Updated: 19 May 2014
Article by Jacqueline Van Essen, Julien Hick and Vincent Wellens

This bill introduces a duty to notify the Dutch Data Protection Authority (College Bescherming Persoonsgegevens, the "CBP") and the relevant data subject(s) in the event of a breach of security measures for the protection of personal data. The duty will apply to businesses, governmental bodies and others, provided in all cases that they constitute a "data controller" within the meaning of the Personal Data Protection Act (Wet bescherming persoonsgegevens, the "PDPA"). The rule imposing the duty will be set out in a new provision of the PDPA (Article 34a).

The penalty for non-compliance with this duty will be a fine of up to EUR 450,000. A similar fine can be imposed for failure to co-operate in an investigation by the CBP into a breach/possible breach (of the above duty to notify) pursuant to article 5:20 of the General Administrative Law Act (Algemene wet bestuursrecht). This article lays down a general duty to co-operate and therefore such a fine can also be imposed in cases where the CBP is conducting an investigation other than in connection with article 34a of the PDPA.

To whom must a notification be made?

1. The CBP must immediately be notified of a breach of security measures which has serious adverse consequences for the protection of the processed personal data.

2. The data subject must immediately be notified of a breach as described above if the breach will probably have unfavourable consequences for his/her individual privacy.

What information must be given in the notification?

1. Both the CBP and the data subject(s) must in any event be notified of the following: i) the nature of the breach, ii) the parties from which more information about the breach can be obtained and iii) the recommended measures for limiting the negative consequences of the breach.

2. The notification to the CBP must, in addition, contain a description of i) the consequences of the breach for the processed personal data and ii) the measures that the data controller has taken or proposes to take in order to remedy those consequences.

This information will mostly be of a technical nature. In some cases, the information required to be notified may include technical details of a confidential nature. According to the explanatory memorandum, the relevant business can, if it so wishes, explicitly designate such data as "company-confidential" (bedrijfsvertrouwelijk) within the meaning of article 10(1)(c) of the Open Government Act (Wet openbaarheid van bestuur).

Manner of notification to data subject(s)

1. The notification to the data subject(s) must be such as to ensure that the provision of information is carried out in a proper and careful manner, taking into account the nature of the breach, the detected consequences and the factual consequences of the breach for the processing of personal data, the circle of data subjects affected and the costs.

Exceptions

1. Notification to the CBP and the data subject(s) is not required if appropriate technological protection measures have been taken to ensure that the personal data in question are unintelligible or unaccessible to parties that are not entitled to access those data.

2. If no notification has been made to the data subject(s), the CBP may demand that the data subject(s) be notified if it is of the opinion that the breach is likely to have unfavourable consequences for the individual privacy of the data subject(s).

3. The notification requirement does not apply if the data controller is a provider of public electronic communications services and, in that capacity, has made a notification as referred to in article 11.3a(1) and (2) of the Telecommunications Act (Telecommunicatiewet). The latter provision sets out a specific notification requirement for providers of public electronic communications services (in connection with the provision of public electronic communications services).

Currently such providers need to notify the Authority for Consumers and Markets. If the bill is adopted they will have to notify the CBP instead of the Authority for Consumers and Markets.

The described exception does not apply in situations where the data controller is a different party than the provider of the public electronic communications services (for example, where the provider is a data processor within the meaning of the PDPA). In such a case, each of the two parties will be subject to a notification duty (under article 34a of the PDPA and under article11.3a of the Telecommunications Act, respectively). If the provider is itself the data controller, its notification duty will be pursuant to article 11.3a of the Telecommunications Act.

4. Financial institutions within the meaning of the Financial Supervision Act (Wet op het financieel toezicht, the "FSA") will not be required to notify a breach to the relevant data subject(s), but will still have to notify it to the CBP.

Such institutions are subject to a notification duty under the FSA, as well as the Prudential Rules (Financial Supervision Act) Decree and the Financial Institutions Business Conduct Supervision Decree. According to the explanatory memorandum, in the financial sector it would be too risky (partly in view of the financial crisis) to make public notifications to data subjects mandatory. A financial institution's duty of care provides a sufficient guarantee that the institution will carry out its responsibility towards its clients by contacting them directly.

A financial institution will only be subject to a double notification requirement (to both the CBP and the Dutch Central Bank/Authority for the Financial Markets) if a data leak also constitutes an incident within the meaning of the FSA (and the Decrees mentioned above). Such an incident is conduct or an event that poses a serious threat to the sound conduct of the financial institution's business.

Data processors

If your enterprise (as a data controller of personal data) engages one or more parties (data processors) to process such personal data on the instruction of, and on behalf of, the data controller, it is important that the notification duty is taken into account in the (data processor) agreement(s). The data processor must, at a minimum, be required to notify the data controller of any breach of security which has serious adverse consequences for the protection of the personal data processed by that data processor.

As the wording of the above rule could give rise to many questions, it is probably preferable to make the notification requirement in the agreement more comprehensive and to include additional safeguards. The CBP has set out a checklist in this regard in its guidelines on the protection of personal data (see our earlier newsletter on this subject).

Expected future developments

It has been announced that amendments to the bill will be submitted, consisting of rules aimed at strengthening the enforcement of the PDPA by broadening the powers of the CBP (e.g. to impose fines).

To be continued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions