GDPR enforcement and penalties
The EU General Data Protection Regulation (GDPR) has attracted media and business interest because of the increased administrative fines for non-compliance. Not all infringements of the GDPR will lead to those serious fines.
Besides the power to impose fines, the Information Commissioner’s Office (ICO) has a range of corrective powers and sanctions to enforce the GDPR. These include issuing warnings and reprimands; imposing a temporary or permanent ban on data processing; ordering the rectification, restriction or erasure of data; and suspending data transfers to third countries.
The costs of non-compliance
The administrative fines are discretionary rather than mandatory; they must be imposed on a case-by-case basis and must be “effective, proportionate and dissuasive”.
There are two tiers of administrative fines that can be levied:
- 1) Up to €10 million, or 2% annual global turnover – whichever is higher.
- 2) Up to €20 million, or 4% annual global turnover – whichever is higher.
The fines are based on the specific articles of the Regulation that the organisation has breached. Infringements of the organisation’s obligations, including data security breaches, will be subject to the lower level, whereas infringements of an individual’s privacy rights will be subject to the higher level.
When deciding whether to impose a fine and the level, the ICO must consider:
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- The nature, gravity and duration of the infringement;
- The intentional or negligent character of the infringement;
- Any action taken by the organisation to mitigate the damage suffered by individuals;
- Technical and organisational measures that have been implemented by the organisation;
- Any previous infringements by the organisation or data processor;
- The degree of cooperation with the regulator to remedy the infringement;
- The types of personal data involved;
- The way the regulator found out about the infringement;
- The manner in which the infringement became known to the supervisory authority, in particular whether and to what extent the organisation notified the infringement;
- Whether, and, if so, to what extent, the controller or processor notified the infringement; and
- Adherence to approved codes of conduct or certification schemes.
Liability for damages
The GDPR also gives individuals the right to compensation of any material and/or non-material damages resulting from an infringement of the GDPR. In certain cases, not-for-profit bodies can bring representative action on behalf of individuals. This opens the door for mass claims in cases of large-scale infringements.
Find out how you can start your journey to becoming GDPR-compliant today >>
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