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.
Article 34 GDPR - Communication of a personal data breach to the data subject
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.
Frequently Asked Questions
Short answers to common questions about this provision. They are general information and not legal advice.
Paragraph 1 requires communication without undue delay when the breach is likely to result in a high risk to the rights and freedoms of natural persons. The threshold is higher than for notification to the supervisory authority under Article 33, which applies to any breach likely to result in a risk.
Under paragraph 2 it must describe in clear and plain language the nature of the breach and contain at least the information and measures referred to in points (b), (c) and (d) of Article 33(3), namely the contact details of the data protection officer or other contact point, the likely consequences, and the measures taken or proposed. The clear-and-plain-language requirement distinguishes it from the more technical notification to the authority.
Paragraph 3 lists three conditions, any one of which suffices. Communication is not required where appropriate protection measures, in particular measures such as encryption rendering the data unintelligible to unauthorised persons, were applied to the affected data, where subsequent measures ensure that the high risk is no longer likely to materialise, or where individual communication would involve disproportionate effort.
Point (c) of paragraph 3 does not remove the duty to inform; it converts it. The controller must instead make a public communication or take a similar measure whereby the data subjects are informed in an equally effective manner.
Yes. Under paragraph 4, where the controller has not yet communicated the breach, the supervisory authority may, having considered the likelihood of a high risk, require the controller to do so, or may itself decide that one of the exemption conditions in paragraph 3 is met.