[co-author: Valeria Schiavo]
The European “Network and Information Security Directive” no. 2016/1148/EU (the “NISD” or the “Directive”) is the main step that has been taken by European institutions for the harmonization of European provisions on cybersecurity. The NISD grants EU Member States a relevant level of flexibility in terms of national transposition. In this respect Italy has recently adopted the Legislative Decree no. 65/2018 (the "Decree"), duly implementing the above mentioned Directive.
The NISD: a general overview
The NISD main goal is to set high standards of cybersecurity to be respected by each EU Member State. A high level of cybersecurity means that companies covered by NISD should develop their programs of data security with the aim of protecting their overall IT systems. This implies activities of analysis and detection, through techniques such as machine learning, for the identification of cyber attacks patterns. For this purpose the NISD establishes a strong system of cooperation between European and national institutions.
The NISD is mainly divided into three main sections: national capabilities, cross-border collaboration and national supervision of critical sectors. Provisions on national capabilities determine that all Member States must have certain cybersecurity capabilities such as, among others, the need of appointment of the so-called Cyber Security Incident Response Team (also known as CSIRT). The role of CSIRT may be considered an equivalent to companies’ security operations centers (also known as SOCs), used for monitoring and analyzing threat activities.
The prescriptions of the Directive on cross-border collaboration mainly focuses on the creation of important and strategic cooperation entities such as European CSIRT Network and the NIS Cooperation Group. The latter is significantly important since it is the main point of contact for Member States to exchange information and concur on the implementation of the Directive across the European territory. The NIS Cooperation Group is composed by national ministries and is assisted by the European Union Agency for Network and Information Security (ENISA).
The Italian implementation: national critical sectors and appointment of NIS competent authorities
On June 26, 2018, the Italian Legislative Decree implementing the NIS Directive has become effective. The Italian legislative framework on cybersecurity is mainly related to part of the Directive regarding national supervision of critical sectors, in which it is prescribed that Member States must supervise the cybersecurity standard adopted by critical national market operators and economic critical sectors, such as health, transport, finance and energy sectors. In this respect, the Decree prescribes the designations of competent authorities, and five Ministries (economic development, infrastructure and transport, economy, health and environment) have been duly appointed as “competent NIS authorities”. In relation to this, the Decree provides for the adoption by the President of the Council of Ministers of a national cyber security strategy, which should include, among others, specific services of response and recovery of IT incidents, definition of an IT risk assessment plan, training and awareness programs on IT security.
Security obligations and incidents notification
The Decree reiterates generic security obligations listed in Article 14 of the Directive. In this respect, operators of essential services must adopt "adequate" technical and organizational measures to manage risks and prevent IT incidents. The Legislative Decree also specifies that, in adopting such measures, operators must take into due account Cooperation Group’s guidelines. Similar security obligations are also foreseen for digital service providers, who must adopt technical and organizational measures to lower risk’s level and reduce the impact of any IT incident. The elements that digital service providers need to take into consideration are specified in the European Commission’s regulation on the modalities of implementation of the Directive (regulation no. 2018/151/EU). Notwithstanding this, all the other entities that cannot be classified as operators of essential services may anyway decide to notify about certain incidents voluntarily. As per obligations of notification, the Legislative Decree specifies that operators of essential services must notify CSIRT of cyber incidents that have a significant impact on the “continuity of the essential services they provide”. A similar obligation is also provided for by the digital service providers of search engines, cloud services and e-commerce platforms. It should also be noted that, with regard to incidents that digital service providers are required to notify, EU Regulation no. 2018/151 specifies which parameters should be taken into consideration in order to determine if the impact of a certain incident is relevant and therefore must be notified. The Legislative Decree does not fix a rigid term to be respected when notification, but it specifies that these must be carried out “without undue delay”. This possibility of directly reporting to the CSIRT, rather than to NIS competent authorities, is advantageous in terms of administrative efficiency. The Legislative Decree also provides that competent NIS authorities should enact appropriate guidelines on the procedure to be followed when notifying cyber incidents. These guidelines should also clarify how notification’s procedures related to different EU regulations should be coordinated. Indeed, some IT incidents could, for example, trigger a notification’s obligation pursuant to Article 14 of the NIS Directive, but also pursuant to Article 33 of the GDPR. For example an attack in which clients’ personal data is stolen should be reported competent national supervisory authority and would be covered by GDPR, while attacks such as DDos, ransomware and malware will most likely need to be reported according to of NISD prescriptions.
As mentioned above, the NISD leaves to Member States a margin of discretion with regard to the type and nature of applicable sanctions in case of violation by operators of essential services (and digital service providers) of the obligations envisaged by the Decree. The Italian Government has decided that Italian competent authorities will be able to enact administrative fines up to € 150,000. This approach is in line with the one adopted by other EU Member States. Indeed, Germany has provided penalties up to € 100,000 for violations of its legislation implementing the NISD, while in the Czech Republic penalties rise to € 200,000.
A part from the described formal implementation of the Directive, it will be interesting to analyze the future measures that Italian institutions will adopt in order to comply with these new European cybersecurity standards and how Italian companies will, in practical terms, proceed in the development of appropriate IT security systems.