What Factors Influence GDPR Financial Penalties?

Posted by

Lynne Callister

on 05 Oct 2020

What Factors Influence GDPR Financial Penalties?

A number of factors affect the size of any GDPR financial penalty. To help you understand them, we have assessed each area in context.

Penalties for breaching the GDPR can reach up to €20 million or 4% of annual global turnover, whichever is highest. We examine each in relation to the now-infamous Facebook data breach.

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1. Gravity, nature & duration of breach

The gravity, nature and duration of the infringement, the number of people affected and the level of damage they experience - it's hard to justify Facebook's actions here:

  • Facebook was warned about the breach in 2015 but did not warn users or carry out an audit to confirm that personal data had been deleted
  • 50 million Facebook users were affected
  • Damage - embarrassment, loss of trust, voter manipulation even?

2. Personal data categories affected

Categories of personal data affected - if the allegations are proven, special category (sensitive) data - i.e. voting preferences - might also have been misused.

3. Negligent or intentional infringement

Whether the infringement is negligent or intentional - hard to say, but Facebook certainly failed to have proper control over third parties or chose to ignore what they were doing.

4. Actions taken to mitigate the damage

The action taken by the controller to mitigate the damage - Facebook was slow to react back in 2015 and simply allowed firms to self-certify that personal data had been erased without auditing them properly.

5. Degree of responsibility of data controller/processor

The degree of responsibility of the controller or processor - Mark Zuckerberg has faced a barrage of criticism over his silence, with the academic claiming he has been made a scapegoat.

6. Previous data breach infringements

Any relevant previous infringements - well, that's tricky as Facebook already has form for its cavalier attitude to user data - as evidenced by its WhatsApp data sharing and €1.2 million fine by the Spanish data authorities.

7. Cooperation with supervisory authorities

The degree of cooperation with the supervisory authority - admittedly, Facebook "ceded to the ICO to allow its investigation" but only after it had already visited Cambridge Analytica's premises when the scandal broke.

8. Aggravating or mitigating factors

Aggravating or mitigating factors (e.g. financial benefits gained from the infringement) - anyone care to look at Facebook's ad revenues for the period? Did it also benefit from Kogan's sale of data to Cambridge Analytica?

Conclusion

Interestingly, Mark Zuckerberg has since claimed that his 'idealistic vision of data portability' may have stopped him focusing earlier on privacy matters. In an era where portability is fast gaining traction, perhaps the Facebook scandal was only the beginning? Exactly what are we prepared to trade and with whom?

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