Personal data breaches are a hot topic at the moment with breaches regularly reported in the press particularly following the implementation of the General Data Protection Regulations (GDPR) in May 2018.
If there has been a breach what rights do individuals have?
Under the GDPR any breaches of personal data have to be reported to the relevant supervisory authority within 72 hours of the breach. If there is likely to be a risk to an individual’s rights and freedoms the individual has to be informed about the breach as soon as possible.
Prior to the GDPR coming into effect, data protection breaches were governed by section 13 of the Data Protection Act 1998 which allowed an individual who had suffered damage as a result of the breach to claim compensation from the data controller for that damage. Compensation for distress was also covered by the act.
The GDPR and a new data protection act have now replaced the 1998 act.
Under article 82 of the GDPR, which applies to breaches within the EU, any person who has suffered material or non-material damage has the right to receive compensation from the controller or processor for the damage suffered. Under paragraph 168 of the Data Protection Act 2018 material damage can include distress.
Under paragraph 169 of the Act, a person who has suffered damage due to a contravention of a requirement of the data potential legislation other than the GDPR is entitled to compensation for that damage. Damage includes both financial loss and damage not involving financial loss, such as distress.
In addition, claims can be considered in tort for the misuse of private information and for any distress as a result or in negligence for negligent disclosure if a duty of care to the claimant can be established and harm can be proved.
I have acted for a number of claimants where local authorities have settled their claims and paid compensation having released information to other parties without their consent in highly sensitive situations. Whilst mistakes can happen, the effect upon the individual concerned can be considerable and it is only right that they should be compensated for this, even if the breach was accidental.
If there has been a breach of your private information it is essential that you obtain legal advice at the earliest opportunity. This area of law is particularly complex especially as the recent changes in legislation will take time to bed in as cases go through the courts.
To speak to a member of the team at Farleys please call 0845 287 0939 or you can contact us by email.