Ireland: Administrative Fines Under The GDPR – The New Tool In The Arsenal

Last Updated: 16 July 2018
Article by Elena Vassileva

The General Data Protection Regulation (the 'GDPR') came into force on 25 May 2018 and is directly effective in each Member State of the European Union (the 'EU') with the goal to harmonise data protection laws across the EU. On 24 May 2018, the Data Protection Act 2018 (the '2018 Act') was enacted and the Commencement and Establishment Day orders signed by Minister for Justice and Equality, Charlie Flanagan TD. Since the final text of the GDPR was agreed in April 2016, the administrative fines which supervisory authorities can now impose on data controllers and processors in case of infringements of their data protection obligations became one of the most commented on changes brought about by the new European legislation.

Under the Data Protection Acts 1988 and 2003 (the 'DPAs'), the Data Protection Commissioner had broad investigation and enforcement powers but did not have the power to impose fines for breaches, which was reserved for the courts. The GDPR introduced in Ireland a two-tiered system of administrative fines for non-compliance of up to €20 million or 4% of the total worldwide annual turnover of the controller or processor in the preceding financial year (whichever is higher).

The lower tier of fines (up to the higher of €10 million or 2% of the total worldwide annual turnover of the controller or processor in the preceding financial year) can be imposed for infringements of obligations relating to the conditions for obtaining a child's consent, communication of a personal data breach to the supervisory authority or the data subject or the designation, position and tasks of the data protection officers.

The higher tier of fines (up to the higher of €20 million or 4% of the total worldwide annual turnover of the controller or processor in the preceding financial year) can be imposed for infringements of obligations relating to the core data protection principles such as transparency and accountability, the processing of sensitive personal data and data subjects' rights.

The Irish Data Protection Commission (the 'DPC') can impose administrative fines in addition to or instead of other corrective measures such as warnings, reprimands, orders, and limitations and bans on the processing of personal data.

The GDPR expressly provides that administrative fines must be effective, proportionate and dissuasive and lists a number of factors which a supervisory authority must take into account when deciding on the amount of the administrative fine in each individual case. These are:

  1. the nature, gravity and duration of the infringement;
  2. the character of the infringement – intentional or negligent;
  3. the actions taken by the controller or processor to mitigate the damage caused to the data subject;
  4. the degree of responsibility of the controller or processor;
  5. previous infringements of the controller or processor;
  6. the degree of cooperation with the supervisory authority;
  7. the categories of the personal data affected by the infringement;
  8. the manner in which the infringement became known to the supervisory authority;
  9. whether corrective measures have been previous ordered against the controller or processor concerned with regard to the same subject matter and compliance with these measures;
  10. adherence to approved codes of conduct or certification mechanisms; and
  11. any other aggravating or mitigating factors applicable to the circumstances of the case.

Given the central role which administrative fines are expected to play in the new data protection enforcement regime introduced by the GDPR and the novelty which they represent in some European countries, the Article 29 Working Party ('WP29'), which was an advisory body comprising representatives from the data protection authority of each EU Member state (which has since been restructured into the European Data Protection Board), adopted Guidelines on the application and setting of administrative fines (the 'Guidelines') which are intended to ensure a consistent approach across the EU.

The Guidelines specify that once an infringement of the GDPR has been established, the competent supervisory authority must identify the most appropriate corrective measure in order to address the infringement. The WP29 identified four principles, which supervisory authorities will observe when using their enforcement powers, namely:

  1. equivalence;
  2. effectiveness, proportionality and dissuasion;
  3. individual assessment; and
  4. exchange of information between supervisory authorities.

The DPC, on reaching a formal decision as to whether an infringement has occurred and, if so, whether to exercise a corrective power, is required to give a controller or processor a notice in writing setting out its decision and the reasoning behind it. This decision may be appealed to the Circuit Court (if the fine does not exceed €75,000) or the High Court (if the fine exceeds €75,000) within 28 days. The Court may confirm, replace or annul the decision of the DPC. Even where a controller or processor does not appeal the imposition of the fine within 28 days, the Circuit Court may still replace or annul the DPC's decision to impose the fine if the Court sees good reason to do so. 

The full impact of the punitive elements of the 2018 Act remain to be seen. Some commentators have already expressed the opinion that the vast discretionary powers which the GDPR grants to supervisory authorities on the imposition of corrective measures and the amount of administrative fines may result in unwanted divergence throughout the EU. Businesses are advised to waste no time in taking active steps towards compliance in order to avoid incurring fines in the first instance.

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
Similar Articles
Relevancy Powered by MondaqAI
Dillon Eustace
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Dillon Eustace
Related Articles
 
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 (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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