In the event of a personal data breach incident, the parties shall: (a) Notify the other party without undue delay upon becoming aware of the breach; (b) Cooperate fully with the other party in investigating the breach and taking appropriate remedial steps; (c) Consult with the other party regarding appropriate notifications to be provided to affected data subjects and/or supervisory authorities; and (d) Take such reasonable steps as are necessary to mitigate the effects and to minimize any damage resulting from the breach. The clause focuses on the key obligations around notifying the other party, cooperating, consulting on required notifications, and taking reasonable mitigating steps. It avoids including unnecessary details around the definition of personal data breach, the format of notifications, specific remediation activities, liability, and indemnities which can be addressed separately in the contract if required. The clause prompts the parties to act promptly and work together in good faith in the event of any data breach incident.
Here is a plain English explanation of the Personal Data Breach Incident clause:
- This clause covers what the parties must do if there is a personal data breach related to the contract.
- A personal data breach means unauthorized access to or disclosure of personal data.
- If a party becomes aware of a breach, they must notify the other party right away.
- The parties must fully cooperate with each other to investigate the breach and take reasonable steps to fix it.
- They should consult with each other about notifying affected individuals and/or data protection authorities as needed.
- The parties should take reasonable actions to minimize the impact of the breach.
- The purpose is to ensure both parties work together to respond quickly, contain the breach, assess notification duties, and mitigate any harm.
- It establishes joint obligations for breach handling without prescribing specific technical details.
- This prompts cooperative action while allowing flexibility to address different breach scenarios.
The concept of data breach notification has its origins in information privacy laws that emerged in the late 20th century. In the 1970s-80s, legislation like the US Privacy Act and UK Data Protection Act introduced basic data protection principles, but lacked breach notification mandates.
By the 1990s-2000s, high-profile security incidents revealed the need for stronger breach accountability. This led jurisdictions like California to enact breach notice laws requiring companies to notify individuals of certain data breaches. The 2002 EU Privacy Directive formally required data controllers to notify authorities of breaches.
As data breaches grew in frequency and impact, contractual clauses outlining breach notification procedures developed as a critical safeguard. They provided more detailed requirements than high-level privacy laws and enabled contractual remedies.
The growth of cloud computing and digital ecosystems from the 2010s onward increased third-party data sharing and reliance on suppliers. This amplified the need for robust breach notification duties in contracts to ensure accountability across supply chains.
Today, personal data breach clauses stipulating notification timeframes, cooperation requirements, and mitigation steps are widely recognized as essential components in contracts that govern sensitive data. They exemplify how contractual terms have evolved to address emerging privacy and security threats.
Looking forward, breach notification clauses will likely continue advancing to account for new breach types, technologies, and regulatory expectations.
As personal data reliance intensifies globally, contractually mandating cooperative breach response will remain crucial.