Ireland: 'Massively Expanded' Enforcement Toolkit And 'Potentially

Last Updated: 11 October 2017
Article by Muireann Reedy

When the General Data Protection Regulation (EU 2016/679) comes into force on 25 May next the Office of the Data Protection Commissioner will be able to impose for the first time large administrative fines for data protection breaches. Muireann Reedy explains why it will pay to be compliant with the GDPR.

In May 2017, the Irish Government published the General Scheme of Data Protection Bill. When finalised and enacted it will give effect to various discretionary measures set out in the GDPR, as well as transposing the Police and Criminal Justice Authorities Directive (EU 2016/680). As a result of the GDPR, the Data Protection Commission, which will replace the Data Protection Commissioner, will have the power to levy administrative fines for the first time. The DPC will be the supervisory authority in Ireland responsible for, among other things, monitoring and enforcing compliance with the GDPR.

The GDPR sets out two tiers of administrative fines, depending on which underlying provision of the GDPR has been breached. For less serious breaches, the fine can be up to the higher of €10 million or, in respect of an undertaking, 2 per cent of its total worldwide annual turnover for the preceding financial year. But these figures can be doubled for more serious breaches.

It remains to be seen if subsidiaries will be considered separately to the parent company when determining the scope of the term 'undertaking'. If they are included within this definition, entities could be looking at potentially colossal fines. Breaches falling within the lower fine bracket include: using a data processor without obtaining sufficient guarantees that it will implement appropriate technical and organisational measures, failing to co-operate with a supervising authority and failing to notify a supervisory authority of a breach within the requisite time period.

Breaches which may trigger a higher level of fine include: processing personal data in a manner which is not lawful, fair and transparent; processing data which is not relevant and limited; failing to ensure that personal data is accurate and where necessary, up to date; and failing to demonstrate to the supervisory authority that the data subject has consented to processing his/her personal data. The GDPR requires supervisory authorities to ensure that in each case the administrative fine is 'effective, proportionate and dissuasive'. The GDPR requires various matters to be considered by a supervisory authority before deciding whether to impose an administrative fine. These include the nature, gravity and duration of the infringement, the number of data subjects affected, the degree of cooperation with the supervisory authority, any relevant previous infringements and any other aggravating or mitigating factors, such as financial benefits gained or losses avoided as a result of the breach.

The GDPR provides for the establishment of a European Data Protection Board which among other things, will be tasked with drawing up guidelines for supervisory authorities on the setting of administrative fines and corrective powers, with the aim of ensuring consistent application of the GDPR. Supervisory authorities also have 'corrective powers' which may be used either on a stand-alone basis or in addition to the levying of an administrative fine.

These powers include issuing a reprimand to a controller or processor when they have committed a data breach, ordering the controller or processor to inform the data subject of the data breach, imposing a temporary or definitive ban on data processing and ordering the rectification or erasure of personal data.

The explanatory notes within the Bill state that the corrective powers set out in the GDPR are potentially far reaching and that the administrative fines are 'potentially massive'. They state, therefore, that 'the foregoing points towards a need for robust procedural and due process safeguards'.

In practice the Bill envisages that the imposition of an administrative fine will be preceded by an investigation by an authorised officer of the DPC, with a variety of compulsory information gathering powers at his/her disposal, which will culminate in an Investigation Report and potentially an oral hearing. The data controller or processor will be given an opportunity to comment on the matter(s) being investigated at various stages.

Any fine imposed as a result of an investigation must be confirmed by the Circuit Court, even if the fine is not contested. If the data controller or processor appeals the fine, the appeal will be heard by the Circuit Court if the fine is less than €75,000 or the High Court if it is higher. Importantly from a reputational perspective, the Bill goes further than the GDPR and provides that the DPC 'shall publish...in such form and manner...as it thinks fit...' details of administrative fines and corrective powers. Depending on the content of these publications (i.e. whether they name the relevant controller or processor) and the format which they take, this could cause significant reputational damage for an entity.

It is noteworthy that under the GDPR a data subject will have a right to seek compensation in the Courts if he or she believes his or her data protection rights have been infringed. A data controller or processor may find, therefore, that in addition to any administrative fine imposed by the DPC, they could also be subject to a compensation order by the Courts. The Data Protection Commissioner, Helen Dixon, is clearly happy with the new powers. Speaking at the Data Summit Dublin 2017 last June she said: '...as a data protection authority supervising the world's largest internet companies from Dublin, we are very pleased to see our enforcement toolkit being expanded massively by the EU.' Her office's budget has been quadrupled since 2014, its staff number has trebled (and is expected to increase to around 100 by the end of this year) and it has hired specialists in the legal, technical, investigative and communications fields.

It is clear from all this that it is expecting an increased workload as a result of the GDPR and is planning on exercising its supervisory muscles. Data controllers and processors should beware!

Previously published in Finance Dublin

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions