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More of GDPR Comes Into Focus: Fines, DPOs and Breaches

With eight trilogue meetings in the books, the negotiators looking to reach a final draft of the EU’s General Data Protection Regulation by Christmas are in the home stretch. Yet again this week, Green MEP Jan Philipp Albrecht, Parliamentarian rapporteur for the GDPR, reported a goal of reaching an agreement before the end of the year. No party from the Commission or Council has indicated anything to the contrary.

Rather, we are now seeing the release of compromise positions as lobbying from consumer and industry groups intensify.

Most recently, Statewatch.org released two documents from the Luxembourg presidency, the first is a 186-page consolidated draft of the entire document in “preparation for trilogue,” which will continue with meetings December 10 and 15, the second is a targeted summary of proposed compromise positions that the Luxembourg presidency would like for the full Council to consider.

The presidency asks that the Council’s Committee of Permanent Representatives (COREPER) consider the recommended compromise positions when it meets tomorrow, Dec. 2.

These compromise positions may be the best indication yet of where three hot-button issues could resolve: data breach notification requirements, the question of imposing mandatory data protection officers (DPOs) and the amount of potential sanctions for violations.

First, data breach notification. The EU Commission’s initial text indicated a deadline of 24 hours following the discovery of a breach to begin notification to a data protection authority. Many in the business world felt this was both onerous in practice and unlikely to protect data in that it would not give time for forensics teams to fully understand the nature of a breach before reporting it.

Parliament has offered a compromise to 72 hours and has introduced the idea of perceived risk to affected individuals affecting the need for notification.

Extending this, the presidency suggests that 72 hours is sufficient time and that those suffering a breach should notify within that time frame “unless the personal data breach is unlikely to result in a risk for the rights and freedoms of individuals.” Further, the suggested draft would allow companies to notify later as long as “reasoned justification” is supplied to the data protection authority (DPA).

Organizations would also be required to document all breaches, regardless of risk, and be able to supply that documentation to DPAs upon request, to prove compliance with the GDPR.

Second, there is the issue of the “mandatory Data Protection Officer.” Both the Parliament and Commission have indicated this is a place where they will insist, though Council has suggested that a DPO merely be encouraged. The Commission draft triggered the DPO at 250 employees. The Parliament draft triggered the DPO at 5,000 data subjects. However, there was general talk that the trigger should more appropriately be involved with the type of data collected, held and processed.

Recognizing the Parliament’s position, the presidency suggests a compromise whereby the DPO would be mandatory on three conditions:

  • the processing is carried out by a public body, other than the courts dealing with criminal information, which will be dealt with in the law-enforcement directive;
  • the core activities of the controller or processor involve “regular and systematic monitoring of the data subjects on a large scale," 
  • the controller or processor is handling a “large scale” of data of a special category, defined in Article 9 as data “revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of genetic data, biometric uniquely identifying a person or data concerning health or sex life and sexual orientation.”

The definition of "large scale" is not supplied.

Further, the presidency suggests that the appointment of that mandatory DPO have a 12-month grace period from the GDPR’s coming into force, which is currently two years from the 20th day following the GDPR’s publication in the Official Journal of the European Union, so organizations would have some three years to figure out their DPO requirements and get someone in place.

Organizations could share DPOs with other organizations and the DPO can have other duties inside an organization.

Finally, there is the matter of fines for GDPR infractions. Much has been made of the Parliament draft that suggests maximum fines of 100,000,000 EUR or 5 percent of annual global turnover. The Council’s maximum fine was still significant, but a much more modest 1,000,000 or 2 percent of annual turnover.

The presidency’s suggested compromise would create a three-tiered system with different maximum fines for different transgressions:

  • violating the obligations of controllers in the document would carry a maximum penalty of 1,000,000 EUR or 2 percent of turnover;
  • violating the rights of data subjects directly would carry a maximum penalty of 2,000,000 EUR or 4 percent of turnover, and
  • violating the order of a DPA would carry a maximum penalty of 1,000,000 EUR or 2 percent of turnover.

Already, the European Data Coalition (EDC) has responded to this last compromise suggestion, suggesting it is “excessive and enormously unfair.” Specifically, the EDC’s spokesperson, Rene Summer, is concerned that the penalties discriminate against companies with high turnover and low margin and don’t take into account “the share of global revenue that is relevant for the geographical applicability of the region.”

The EDC also calls for a 10,000,000 euro hard cap, a “pyramid” of enforcement that would include DPA contact and a warning letter before sanction, proof of “serious harm” and a requirement that “only the lead authority should have the power to issue penalties.”

How the trilogue negotiators will take these pieces of feedback, and whether the Council as a whole will even accept the presidency’s suggestions, is still to be determined. However, the presidency does ask that COREPER consider the suggestions “with a view to confirmation” and asks for a mandate to take them into trilogue with the Commission and Parliament.

As these suggested positions are not far from Parliament’s proposals, it may very well be that these compromise positions are quite close to the language that will become part of the final GDPR agreement. With only two more scheduled trilogues on the docket, the world will know one way or the other in relatively short order.

Photo credit: Supplied by Luxembourg presidency, copyright SIP

Written By

Sam Pfeifle

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