IANAL, but I'd take the approach that I think the court would, which is that the burden is on the claimant to prove that, on the balance of probabilities, the breach did occur. So, if you're not satisfied that it's more likely it did than didn't then take option B (plus telling them they have a right to judicial remedy) and let the ICO and/or court decide.
Dan
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Phil Bradshaw
Sent: 29 November 2019 09:55
To: [log in to unmask]
Subject: [data-protection] Data Breach - Burden of Proof
Scenario: Whether there has been a breach depends solely on whether subject asked us not to share data. The breach if it happened meets the criteria for an ICO report.
Subject statement is that he clearly made wishes known to staff A. Staff A is equally adamant this simply never happened - positive recollection not simply a politician's "I do not recall".
Objectively I have no way to determine who is correct. Do I:
A. Accept there is a breach and report to ICO
B. Advise subject we do not accept there is a breach but that he may complain to ICO.
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