Short Reads

GDPR: Oops! Caught red-handed? What are the sanctions for violating data protection rules?

Oops! Caught red-handed? What are the sanctions for violating data pr

GDPR: Oops! Caught red-handed? What are the sanctions for violating data protection rules?

18.08.2016

The supervisory authority of each Member State under the GDPR will now be entitled to impose more stringent administrative sanctions. And that’s not all: sanctions can also be imposed by courts.

So, what could happen when one violates data protection rules?

The administrative sanctions imposed by the supervisory authority are two-fold: it can (i) take one or more of the measures listed in the GDPR, such as issue a warning or impose a temporary or definitive ban on processing personal data, or (ii) impose a fine, depending on the circumstances of each individual case, or do both.

For the latter, the GDPR stipulates two possible maximum fines, depending on the nature of the violation. The first maximum administrative fine is EUR 10 million or 2% of the defaulting entity’s total worldwide turnover of the preceding financial year, whichever is higher.

The GDPR identifies various grounds on which this fine could be imposed. For example, in case of a failure to notify a data breach or a failure to implement appropriate technical and organizational measures for ensuring that, by default, only personal data that are necessary for each specific purpose of the processing are processed. An administrative fine can also be imposed if one fails to carry out a DPIA whenever required to do so.

The second maximum fine is EUR 20 million or 4% of the defaulting entity’s global turnover. This maximum would apply  to more “serious” violations, such as transferring personal data to a third country without taking appropriate measures to safeguard the data or without observing the data subject’s objection to the processing of his or her personal data.

In any event, when considering a sanction,  the supervisory authority must take into account various factors, such as the duration of the violation, its intentional or negligent nature, the categories of data, and the number of data subjects concerned, as well as the attitude of the defaulting entity, including any relevant, previous violation(s). Also, the GDPR states that all measures must be effective, proportionate and dissuasive. This means that a supervisory authority is not entitled to simply impose any sanction it sees fit whenever there is a violation of data protection rules. Rather, it should ensure—and justify—that the specific sanction being imposed meets these objectives.

And if one disagrees with the sanction imposed? Then the party sanctioned may lodge an appeal before the courts of the Member State where the supervisory authority concerned is established.

In addition to these administrative sanctions, data controllers and/or processors can be sued before a court in the Member State where they are established or a court of a Member State where the data subject has his or her habitual residence. These proceedings can be brought by the data subjects themselves and/ or by the relevant supervisory authority, and even, under certain conditions, by any body, organization or association that advocates the protection of personal data. The more specific remedies are those laid down in the national laws.

All of the foregoing reminds us that privacy compliance is becoming an even more significant issue. As we know, the GDPR will only become effective as from 25 May 2018. It is to be expected, however, that supervisory authorities will already start interpreting current data protection legislation in the light of the new provisions of the GDPR.

To read more about this series of articles (and the articles that were published previously), please click here

Team

Related news

02.07.2019 NL law
Debate night: HR Analytics: opportunity or threat?

Seminar - On 2 July 2019, Stibbe's Digital Economy Group will host a debate night in Amsterdam on the hot topic of HR analytics. During Stibbe's debate night, speakers from the world of business, politics, science and law will exchange views on HR analytics, how they can be used in practice, and their development in the context of employment and privacy law.

Read more

06.06.2019 NL law
Masterclass: Alcohol and drug testing in the workplace

Masterclass - Stibbe will host a masterclass entitled 'Alcohol and drug testing in the workplace' on 6 June in Amsterdam. During this masterclass, employment law expert Johan Zwemmer and privacy experts Frederiek Fernhout and Judica Krikke will discuss the Dutch Data Protection Authority's general prohibition of these tests and discuss whether and how employers should implement.

Read more

21.06.2019 NL law
Nieuw boetebeleid van de Autoriteit Persoonsgegevens

Short Reads - Op 14 maart 2019 zijn de nieuwe Boetebeleidsregels Autoriteit Persoonsgegevens 2019 ("Boetebeleidsregels") van de Autoriteit Persoonsgegevens ("AP") gepubliceerd. Dit boetebeleid heeft de AP opgesteld vanwege de inwerkingtreding van de Algemene verordening gegevensverwerking ("AVG") en omdat er op Europees niveau nog geen boeterichtsnoeren zijn opgesteld.

Read more

06.06.2019 NL law
Masterclass: Alcohol- en drugstesten op de werkvloer

Masterclass - Stibbe in Amsterdam organiseert op 6 juni de masterclass 'Alcohol- & drugstesten op de werkvloer'. Tijdens deze masterclass bespreken arbeidsrechtexpert Johan Zwemmer en privacydeskundigen Frederiek Fernhout en Judica Krikke het algemene verbod van de Autoriteit Persoonsgegevens op deze testen voor werkgevers en leggen zij onder meer uit hoe hiermee moet worden omgegaan.

Read more

07.06.2019 BE law
Part three - GDPR and public law: To retroact or not?

Articles - Since the General Data Protection Regulation (“GDPR”) became applicable almost one year ago, multiple questions have arisen about its interaction with other fields of law. In this three-part blog series of “GDPR and public law”, we discuss three capita selecta of the interaction of GDPR with public law and government. In this blog we discuss the retroactive application of GDPR.

Read more

05.06.2019 BE law
Part two - GDPR and Public Law: Data protection in public procurement

Articles - Since the General Data Protection Regulation (“GDPR”) became applicable almost one year ago, multiple questions have arisen about its interaction with other fields of law. In this three-part blog series of “GDPR and public law”, we discuss three capita selecta of the interaction of GDPR with public law and government. In this blog we discuss some GDPR-related aspects of public procurement.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring