Ireland: GDPR One Year On - The Regulators Are Coming

Saturday 25 May marked the first anniversary of the new era heralded by the General Data Protection Regulation ("GDPR"). This milestone serves as a timely opportunity to consider a number of recent decisions from various national regulatory authorities. These enforcement actions have underlined the importance of companies ensuring that they gather and process personal data in compliance with data protection law, including GDPR. While decisions of other national regulatory authorities are not binding in Ireland, they will be instructive given that they are based on the same underlying principles, which are derived from GDPR.

Polish company fined for unlawful processing of publicly-available data

Poland's Personal Data Protection Office (the "UODO") announced a fine of approximately €220,000 in March against an unnamed company that processed contact data obtained from publicly available sources without informing the individuals concerned. Article 14 of GDPR requires data controllers who do not obtain personal data directly from the data subject to provide these individuals with information about how their data is processed within a reasonable time after obtaining the data, but this is not required where it "proves impossible or involves a disproportionate effort".

The company obtained personal data from public registries, such as the Polish electoral register, to prepare trade reports, contact lists and "other business and management consulting services" to its clients. It sent the requisite data processing statement to the data subjects whose email addresses it had and published a similar data protection policy on its website. However, the company did not provide this information to the over 6,000,000 data subjects for whom it did not have email addresses but did have phone numbers or postal addresses.

The UODO decided that the provision of the information through a website privacy policy did not suffice as it was neither impossible nor a "disproportionate effort" for the company to contact the individuals whose telephone number or postal address were available, despite the company's argument that the cost of doing so would have been excessive. The UODO agreed that, where the company did not possess any contact details for the data subjects, it would not be obliged to find these contact details as this would involve a "disproportionate effort".

The UODO noted that it decided to impose a fine as the company in question was aware of its obligations under Article 14 of GDPR, and decided not to inform data subjects of the manner in which their personal data is being processed in order to avoid the costs of doing so. The company was also ordered to belatedly provide the requisite information to the data subjects whose contact data it held on file. This decision serves as an instructive reminder of the fact that personal data might be publicly available does not necessarily mean that that data may be processed. The principles set out in GDPR and the relevant national legislation in relation to having a legal basis for data processing still apply.

UK company fined for selling personal medical data

The United Kingdom's Information Commissioner's Office (the "ICO") fined Bounty (UK) Limited £400,000 in April for illegally sharing personal data belonging to more than 14 million data subjects.

This company operated a pregnancy and parenting club, and as part of its operations it collected personal data for the purpose of registering members through its website and mobile app, merchandise pack claim forms or directly from new mothers at hospital bedsides. However it also supplied approximately 34.4 million records between June 2017 and 30 April 2018 to credit reference and marketing agencies for the purposes of electronic direct marketing. The personal data shared included health data such as the pregnancy status of new mothers and mothers-to-be (which is a special category of personal data subject to additional protections under GDPR), as well as the birth date and gender of newly-born children.

While the ICO found that the online registration methods included privacy notices which included "a reasonably clear description of the organisations they might share information with", none of the merchandise pack claim cards or offline registration methods contained an option to opt in to direct marketing.

As the breaches occurred before GDPR came into force, the company was fined £400,000 under the UK's pre-existing data protection rules (under which the maximum possible fine was £500,000). The ICO also noted that the breaches were motivated by financial gain as the data sharing was "an integral part of their business model at the time" and that they were "unprecedented" in scale. This, along with the fact that personal health data and the personal data of children were involved, may be considered to have influenced the ICO in imposing a fine which was at the upper end of the scale that applied at the time. A much higher fine may have been imposed if the breaches had occurred after GDPR came into force, as the maximum possible fine is now €20,000,000 or 4% of a company's annual global turnover.

This case underlines the serious nature of companies' obligations in relation to collection, processing and sharing of personal data.

Facebook ordered not to bundle data collected from different services in Germany

Germany's competition enforcement authority, the Bundeskartellamt, announced in February that it had found that Facebook's data protection practices were in violation of German competition law. In brief, the Bundeskartellamt found that (i) Facebook occupied a dominant position in the German market for social networks; and (ii) Facebook's practice of combining user data gathered from different services (such as Facebook itself, Instagram and Whatsapp) as a condition of using these services constituted an abuse of its dominant position. The Bundeskartellamt has ordered Facebook to offer its services to its German customers without bundling user data gathered from these different services.

While the Bundeskartellamt's decision was based on competition law, it did also express the opinion that there was no legal basis under GDPR which allowed Facebook to process the data collected in this manner. It ordered Facebook to only bundle user data gathered from different services in the case of users who have been allowed a real choice in the matter.

As this decision was based on German domestic competition law, it remains to be seen whether the same approach will be taken by the other national competition enforcement authorities or the European Commission. However at the very least it will give businesses reason to consider whether their data processing practices or trading terms could be construed as abusive. It also demonstrates that data protection cannot be properly assessed in isolation from other aspects of legal compliance. The intersection between competition law and data protection law in particular looks set to become a focus of attention from the domestic regulators in the coming years, and it is noteworthy that Ireland's Data Protection Commission has been active in scrutinising Facebook's proposed integration of those services in Ireland.

Conclusion

GDPR has now been in force for one year, and regulatory investigations are proceeding in earnest. In Ireland, the Data Protection Commission has already announced investigations into personalised online advertising and the sufficiency of technical and organisation measures taken by IT companies such as Twitter and Facebook to protect the security of personal data. This suggests that tech companies will face particular supervision by the Data Protection Commission, but it remains as important as ever for all businesses to ensure that their data protection procedures are beyond reproach.

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
 
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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