What is the Notifiable Data Breaches scheme?
The passage of the Privacy Amendment (Notifiable Data Breaches) Act 2017 established a Notifiable Data Breaches (NDB) scheme in Australia.
The NDB scheme requires organisations covered by the Australian Privacy Act 1988 (Privacy Act) to notify any individuals likely to be at risk of serious harm by a data breach.
This notice must include recommendations about the steps that individuals should take in response to the data breach. The Australian Information Commissioner (Commissioner) must also be notified.
Organisations will need to be prepared to conduct quick assessments of suspected data breaches to determine if they are likely to result in serious harm.
What is a Notifiable Data Breach?
A Notifiable Data Breach is a data breach that is likely to result in serious harm to any of the individuals to whom the information relates.
A data breach occurs when personal information held by an organisation is lost or subjected to unauthorised access or disclosure.
Examples of a data breach include when:
- a device containing customers’ personal information is lost or stolen
- a database containing personal information is hacked
- personal information is mistakenly provided to the wrong person.
Why is the NDB scheme important?
The NDB scheme will strengthen the protections afforded to everyone’s personal information, and will improve transparency in the way that organisations respond to serious data breaches.
This in turn supports consumer and community confidence that personal information is being respected and protected.
It also gives individuals the opportunity to take steps to minimise the damage that can result from unauthorised use of their personal information.
When does it take effect?
The NDB scheme will commence on 22 February 2018. It only applies to eligible data breaches that occur on, or after, that date.
Resources to prepare for the NDB scheme
We recommend that all organisations review their practices, procedures and systems for securing personal information in preparation for the scheme. The OAIC has a comprehensive Guide to securing personal information to assist you with this.
Organisations should also prepare or update their data breach response plan to ensure that they are able to respond quickly to suspected data breaches. The OAIC’s Data breach notification — A guide to handling personal information security breaches and Guide to developing a data breach response plan provide a best practice model, and will be updated in consultation with stakeholders ahead of the commencement of the NDB scheme.
Our privacy management framework sets out the steps that the OAIC expects organisations to take to ensure good privacy governance and compliance with the Privacy Act.
Who must comply with the NDB scheme
The NDB scheme will apply to businesses, Australian Government agencies, and other organisations that are already required by the Privacy Act to keep information secure.
Draft: Entities covered by the NDB schemeCOMMENTS CLOSED
Which data breaches are notifiable
Not all data breaches are notifiable — the NDB scheme only requires organisations to notify when there is a data breach that is likely to result in serious harm to any individual to whom the information relates. Exceptions to the NDB scheme will apply for some data breaches, meaning that notification to individuals or to the Commissioner may not be required.
Draft: Identifying eligible data breachesCOMMENTS CLOSED
Assessing suspected data breaches
Organisations that suspect an eligible data breach may have occurred are required to undertake a reasonable and expeditious assessment to determine if the data breach is likely to result in serious harm.
How to notify
Where an organisation becomes aware that there are reasonable grounds to believe an eligible data breach has occurred, they are obligated to notify individuals at likely risk of serious harm and the Commissioner as soon as practicable. This notification must set out:
- the identity and contact details of the organisation
- a description of the data breach
- the kinds of information concerned and;
- recommendations about the steps individuals should take in response to the data breach.
Draft: Notifying individuals about an eligible data breachCOMMENTS CLOSED
Draft: Notifiable Data Breach statement — SmartFormPROVIDE COMMENT
The role of the OAIC in NDB scheme regulation
The Commissioner will have a number of roles under the NDB scheme. These include:
- receiving notifications of eligible data breaches
- encouraging compliance with the scheme, including by handling complaints, conducting investigations, and taking other regulatory action in response to instances of non-compliance
- offering advice and guidance to regulated organisations, and providing information to the community about the operation of the scheme.
Draft: Australian Information Commissioner’s role in the NDB schemeCOMMENTS CLOSED
Draft: Guide to OAIC Privacy Regulatory Action — Chapter 9: Data breach incidentsPROVIDE COMMENT
To keep up-to-date on the latest privacy news, sign up to our Privacy Professionals’ Network (PPN). The OAIC regularly holds events across the country for members of the PPN.