Encryption would exempt ISPs from data breach notification to EU customers

New rules on how to implement the ePrivacy law come into force in August

From around the end of August, European Union telecom providers and ISPs will have to comply with new rules to ensure that customers in all E.U. countries receive the same information if their personal data is lost, stolen or otherwise compromised.

The new "technical implementing measures," published by the European Commission on Monday, are detailed practical rules on implementing existing legislation -- the ePrivacy Directive.

Since 2011, telecom companies and ISPs have been under a general obligation to inform national authorities and subscribers about breaches of personal data. But a public consultation launched in May 2011 found that some national rules were widely divergent.

The U.K., for example, wanted only "serious" breaches notified, while France wanted notification by registered mail. Deadlines for data breach notification also ranged widely -- from two days in Ireland to 10 days in Greece.

As a result the Commission decided to introduce the technical implementing measures. Providers will be obliged to notify authorities 24 hours after detection of the breach. The Commission interprets detection to have occurred "when the provider has enough information to make a meaningful notification -- mere suspicion of a breach is not enough." But providers also have three additional days to provide further information. If they need more time after that, then they have to justify it to national authorities.

Different rules apply when it comes to notifying subscribers. Companies must assess the type of data compromised and whether it is likely to include personal data. However, companies that encrypt personal data, using technological protection measures from an approved Commission list, will be exempt having to notify the subscriber.

The measures are also clear on what measures are optional. Providers may, if they choose, notify the media of any breach, but there is no obligation to do so.

Wholesale telecoms providers that offer back-end services and have no direct relationship with the subscriber are not required to notify national authorities or the subscriber, although if data under their responsibility is compromised, they should notify "up the chain."

The reform of the E.U.'s data protection rules, which is currently under way, proposes extending the ePrivacy data breach obligation to any entity that holds customers' personal data.

The measures for telecom companies and ISPS will come into force two months after publication in the Official Journal of the European Union.

Follow Jennifer on Twitter at @BrusselsGeek or email tips and comments to jennifer_baker@idg.com.

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Jennifer Baker

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