Bavarian DPA: fines under GDPR to be calculated based on revenues of whole company group; ICO publishes report on data security incident trends.

Bavarian DPA: fines under GDPR to be calculated based on revenues of whole company group

On September 01, 2016, the German Data Protection Authority of Bavaria (BayLDA) has announced that according to their understanding, sanctions under the GDPR will be calculated based on the revenue of a whole company group. According to the authority, this should apply even when only one single entity is responsible for an incident.

In its position paper, the BayLDA elaborates that fines under the GDPR have to be “effective, proportionate, and dissuasive.” For most infringements, the fine can amount up to a maximum of either € 10 million, or 2% of the company’s annual global turnover (the higher will apply). For serious infringements, the fine can even amount up to the higher of € 20 Million or 4% of the respective turnover. The turnover will comprise of the turnover of the whole company group a company belongs to, according to recital 150 of the preamble, which relates to the “economic concept of an undertaking”.

Although the BayLDA’s position paper is non-binding, the interpretations and views published can nevertheless be considered very important hints on how in particular the German Data Protection authorities will interpret and enforce the new Regulation, which will enter into force on 25 May 2018. The European Data Protection Board, a group of representatives of the EU Member States (currently known as Article 29 Working Party), is expected to issue guidelines on the calculation of fines.


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EU Commission publishes first results of consultation of e-Privacy Directive; Irish DPA issues Guidance on Location Data.

European Commission publishes summary report on consultation of e-Privacy Directive

On August 4, 2016, the European Commission has published a first summary report on the public consultation on the evaluation and review of the e-Privacy Directive (Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), also known as ‘e-Privacy’ or ‘Cookie’ Directive.

Two weeks ago, on July 19, 2016, the Article 29 Working Party, an EU advisory body comprised by representatives of the national Data Protection Authorities, had also published a detailed opinion on this issue.

The ‘e-Privacy Directive’, which contains specific rules relating to the processing of personal data in the e-Communications sector, needs to be adapted to the new European General Data Protection Regulation (‘GDPR’), which will replace the former EU Directive 95/46/EC as from May 25, 2016. The GDPR aims to ensure modernized rules and increased harmonization for Privacy in Europe and is part of the European Commission’s Digital Single Market (DSM) Strategy.

The 421 stakeholders in the consultation, of whom more than ¼ are situated in Germany, agree with a vast majority of 83% that specific privacy rules for e-Communication are useful to ensure the confidentiality of communications. In addition, 76% of respondents believe that the Directive should as well apply to so-called ‘over-the-top’ service providers (OTT), when offering VoIP services or instant messaging. However, more than ¾ of the respondents also said that until now, the Directive has achieved its aims only to a limited extent, due to – among others – too little enforcement and compliance pressure.

The Commission’s conclusions drawn from the consultation, as well as proposals on how to adapt the Directive are expected to be released later this year.


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