GDPR fines

GDPR penalties and fines

The GDPR (General Data Protection Regulation) sets a maximum fine of up to €20 million or, in the case of an undertaking, 4% of annual global turnover – whichever is greater – for infringements.

However, not all GDPR infringements lead to data protection fines. Supervisory authorities such as the UK’s ICO (Information Commissioner’s Office) can take a range of other actions, including:

• 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.

What is the maximum GDPR fine?

There are two tiers of administrative fine for non-compliance with the GDPR:

1. Up to €10 million, or, in the case of an undertaking, 2% of annual global turnover – whichever is greater; or
2. Up to €20 million, or, in the case of an undertaking, 4% of annual global turnover – whichever is greater.

GDPR breach fines are discretionary rather than mandatory. They must be imposed on a case-by-case basis and should be “effective, proportionate and dissuasive”.

What is the definition of ‘undertaking’ under the GDPR?

Articles 101 and 102 of the TFEU (Treaty on the Functioning of the European Union) set out competition rules applying to undertakings, but do not actually define what an undertaking is.

According to EU case law, however, an ‘undertaking’ is “any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed”.

In other words, it is what we would term an organisation.

How are GDPR fines determined?

Lower level of GDPR penalties

Fines of up to €10 million or 2% of annual global turnover can be issued for infringements of articles:

• 8 (conditions for children’s consent);
• 11 (processing that doesn’t require identification);
• 25 – 39 (general obligations of processors and controllers);
• 42 (certification); and
• 43 (certification bodies).

Higher level of GDPR penalties

Fines of up to €20 million or 4% of annual global turnover can be issued for infringements of articles:

• 5 (data processing principles);
• 6 (lawfulness of processing);
• 7 (conditions for consent);
• 9 (processing of special categories of data);
• 12 – 22 (data subjects’ rights); and
• 44 – 49 (data transfers to third countries or international organisations).

GDPR fines so far

By the end of 2019, European supervisory authorities had issued, or announced their intention to issue, at least 133 administrative fines, totalling approximately €400 million (£337 million).

(This includes the ICO’s intended fines for Marriott International and British Airways, which were announced in July 2019. Without them, the figure is closer to €85 million (£72 million). The total is approximate owing to currency fluctuations and the fact that not all supervisory authorities publish information about the action they have taken.)

Most common types of GDPR breach – to end of December 2019

Not all penalties are data breach fines. Most fines relate to breaches of the GDPR’s requirements.

Of the 123 GDPR fines where data is available, there were:

• 45 violations of Article 5 (data processing principles);
• 41 violations of Article 6 (lawfulness of processing);
• 30 violations of Article 32 (security of processing);
• 18 violations of Article 13 (privacy notices); and
• 11 violations of Article 15 (data subject access requests).

(Many breaches involved violations of more than one article of the GDPR.)

 Learn more about GDPR compliance

Notable GDPR fines to date:

We will keep this page updated with details of notable GDPR fines as and when they are issued.

How are GDPR fines applied?

When deciding whether to impose a fine and to what level, supervisory authorities must consider a range of factors, as set out in Article 83 of the Regulation:

• The nature, severity and duration of the GDPR infringement.
• Whether the infringement was caused intentionally or by negligence.
• 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.
• The degree of cooperation with the regulator to remedy the infringement.
• The types of personal data involved.
• How the regulator found out about the infringement, and the extent of any notification by the controller or processor.
• Adherence to approved codes of conduct or certification schemes.

Useful external links

• ICO enforcement action
• European Commission Enforcement and sanctions.
• EDPB (European Data Protection Board)
• EDPB Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects.
• EDPB Guidelines on the application and setting of administrative fines (wp253).
• Handbook on European data protection law.