While it may be concluded in the fullness of time that this data breach was simply “unavoidable”, we do not anticipate this will be the case. The EDPB notes “Data breaches are problems in and of themselves, but they are also symptoms of a vulnerable, possibly outdated data security regime, thus indicate system weaknesses to be addressed.” In other words, a data breach is not necessarily an unavoidable side effect of having a modern system, but a symptom of a flawed system.

The GDPR applies a graduated standard to the level of security that should be in place depending on the level of sensitivity of the data. It is worth reproducing Article 32 GDPR in full and it provides as follows:

1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
(a) the pseudonymisation and encryption of personal data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
(d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
2. In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
3. Adherence to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate compliance with the requirements set out in paragraph 1 of this Article.

There are a number of observations from this. As noted above the HSE data breach comprised all three categories of data breach, i.e. a Confidentiality breach, an Integrity breach and an availability breach. The scale of the confidentiality breach we do not know at present. At the time of writing the alleged hackers have accessed he the information, but have not made it freely available, although are expected to do so. We are essentially entrusting our privacy with the nefarious actors who stole it. No Data Subject can reasonably be expected to have consented to their data being exported to a third Country in nefarious circumstances.

It is a given that Health Data is deserving of the highest level of security as it can have a fundamental impact on a person’s wellbeing. To quote the European Data Protection Board again:

“As a result of the breach [of health data], medical secrecy is broken and unauthorized third parties may gain access to the patients’ private medical information, what may have severe impact on the patient’s personal life. The availability breach may also disturb the continuity of the patients’ treatment.

It has been noted by a number of commentators in the media that the obligation to keep data secure is not a strict one, in other words that a data breach is not alone evidence that security was not adequate. This is, strictly speaking correct, and as noted above, the requirements are graduated depending on the nature of the data. Equally however it will be difficult for the HSE to argue their systems were appropriate given the calamitous nature of the breach and given the nature of the information held. Further questions will be asked in time as to why there was a domino/cascading impact of the data breach on the entire health system It also may be a case where the well-established legal principle of res ipsa loquitor may be considered to apply. This was succinctly stated by Erle CJ in Scott v. London & St. Katherine Docks Co as

..where [it] is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary circumstances does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.

In conclusion, while it premature at this point to conclude how the attack happened and if there were adequate security measures in place, this writer concludes on balance that it is highly unlikely a defence of this nature would be successful. Furthermore the apparent inability of the HSE to restore any systems from backups will raise questions as to the compliance with Articles 32 (C) and (D).