The Dutch Data Protection Authority (“DPA”) has amended its Penalty Policy Rules under an amendment of the Dutch Telecommunication Act. The new rules apply as from 1 July 2016.
Previously, the DPA could impose an administrative fine up to a maximum of EUR 450,000 if a telecom provider did not (immediately) notify the DPA of a data breach in accordance with Article 11.3(a) of the Dutch Telecommunication Act. This fine’s maximum has now been increased to EUR 900,000 in both the DPA’s Penalty Policy Rules and the Dutch Telecommunication Act.
The starting point of the DPA in determining the amount of the fine is that fines must be proportional to the violation committed. Fines that can be imposed by the DPA can vary from a maximum of EUR 20,250 for relatively minor violations to a maximum of EUR 900,000 (previously: EUR 820,000) for deliberate or repeated violations of the Dutch Data Protection Act. For legal entities that have violated this Act, the fine is flexible: if the amount of fine set for the highest penalty category is not sufficiently punitive, the violation can be sanctioned additionally with a fine equivalent to up to 10% of the company’s annual net turnover.
Fines may only be imposed on a company following a binding instruction given from the DPA. Through this instruction, the DPA can inform the company what steps it should take to avoid paying the fine. But if the violation concerned was either intentional or a matter of serious culpable negligence, the DPA is not obliged to issue an instruction and can impose a fine directly.
We will of course inform you if the DPA imposes significant fines with respect to violations of the Dutch Data Protection Act.
This document can be found here (only available in Dutch).