The new Notifiable Data Breaches (NDB) scheme commenced on 22 February 2018.

The NDB scheme is contained in Part IIIC of the Commonwealth Privacy Act 1988 (Cth) (Privacy Act). The Privacy Act also contains the Australian Privacy Principles (APPs).

The NDB scheme applies to developers who have existing personal information security obligations under the Privacy Act. If in doubt, seek legal advice as to whether the NDB scheme applies to you.

If an entity is aware that there are reasonable grounds to believe that there has been an ‘eligible data breach’, it must notify the Office of the Australian Information Commissioner (Commissioner) and affected individuals.

An eligible data breach occurs when there is loss of, unauthorised access to, or unauthorised disclosure of, personal information, which is likely to result in serious harm, and remedial action has not been taken to prevent such risk of harm.

The statement to be provided to the Commissioner must include the following information:

  • the identity and contact details of the entity
  • a description of the eligible data breach that the entity has reasonable grounds to believe has happened
  • the kind or kinds of information concerned
  • recommendations about the steps that individuals should take in response to the eligible data breach

This statement must also form the basis of the notification to individuals.

The NDB scheme provides flexibility for notifying individuals at risk of serious harm and its depends on what is practicable for the entity.

There are three main alternatives:

  • notify all individuals to whom the relevant information relates – this method will apply if it is not practicable to separately identify persons who may specifically be affected by the breach
  • notify affected individuals – where you are able to separate out particular individuals who are at risk from the breach
  • if neither of the above are practicable, you must communicate the breach by publishing a statement on your website (if you have one) and otherwise by taking reasonable steps to publicise it.

Accordingly, developers must be prepared to conduct a quick assessment of a suspected data breach to determine whether it is likely to result in serious harm, and as a result require notification. Timing is critical in responding to a data breach. Delays in notification can expose developers to significant financial penalties, as well as brand damage and loss of customer confidence.

We strongly recommend that, among other things, all potentially affected entities amend its existing privacy policy and have in place a data breach response plan. If you are caught by the NDB scheme and do not yet have a data breach response plan in place, this should be a key priority for your organisation.