Fines may be imposed by data protection authorities and should be effective, proportionate and dissuasive. When imposing fines, supervisory authorities must take into account a number of factors, including the nature, severity and duration of the infringement, previous infringements by data controllers and the degree of responsibility (negligent or intentional).
How much the fine actually is, depends on each individual case. The maximum fine for breaches of the very principles of data processing or of data subjects’ rights is 20 million euros or, in the case of companies, four percent of their annual turnover worldwide, whichever number is higher. Failure to report data leaks can amount to a maximum of ten million euros or two percent of annual sales. Whether and when these maximum penalties will be imposed is not yet clear. The inclusion of such specific figures in the General Data Protection Regulation nevertheless serves the purpose of emphasising the data subjects’ rights and data protection in general, and of clarifying their particular significance.
In Germany, the Federal Data Protection Act stipulates that no fines can be imposed on public authorities.
Article 83 GDPR (General conditions for imposing administrative fines)
1. Each supervisory authority shall ensure that the imposition of administrative fines pursuant to this Article in respect of infringements of this Regulation referred to in paragraphs 4, 5 and 6 shall in each individual case be effective, proportionate and dissuasive.
2. Administrative fines shall, depending on the circumstances of each individual case, be imposed in addition to, or instead of, measures referred to in points (a) to (h) and (j) of Article 58(2). When deciding whether to impose an administrative fine and deciding on the amount of the administrative fine in each individual case due regard shall be given to the following:
(a) the nature, gravity and duration of the infringement taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them;
(b) the intentional or negligent character of the infringement;
(c) any action taken by the controller or processor to mitigate the damage suffered by data subjects;
(d) the degree of responsibility of the controller or processor taking into account technical and organisational measures implemented by them pursuant to Articles 25 and 32;
(e) any relevant previous infringements by the controller or processor;
(f) the degree of cooperation with the supervisory authority, in order to remedy the infringement and mitigate the possible adverse effects of the infringement;
(g) the categories of personal data affected by the infringement;
(h) the manner in which the infringement became known to the supervisory authority, in particular whether, and if so to what extent, the controller or processor notified the infringement;
(i) where measures referred to in Article 58(2) have previously been ordered against the controller or processor concerned with regard to the same subject-matter, compliance with those measures;
(j) adherence to approved codes of conduct pursuant to Article 40 or approved certification mechanisms pursuant to Article 42; and
(k) any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits gained, or losses avoided, directly or indirectly, from the infringement.
3. If a controller or processor intentionally or negligently, for the same or linked processing operations, infringes several provisions of this Regulation, the total amount of the administrative fine shall not exceed the amount specified for the gravest infringement.
4. Infringements of the following provisions shall, in accordance with paragraph 2, be subject to administrative fines up to 10 000 000 EUR, or in the case of an undertaking, up to 2 % of the total worldwide annual turnover of the preceding financial year, whichever is higher:
(a) the obligations of the controller and the processor pursuant to Articles 8, 11, 25 to 39 and 42 and 43;
(b) the obligations of the certification body pursuant to Articles 42 and 43;
(c) the obligations of the monitoring body pursuant to Article 41(4).
5. Infringements of the following provisions shall, in accordance with paragraph 2, be subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher:
(a) the basic principles for processing, including conditions for consent, pursuant to Articles 5, 6, 7 and 9;
(b) the data subjects’ rights pursuant to Articles 12 to 22;
(c) the transfers of personal data to a recipient in a third country or an international organisation pursuant to Articles 44 to 49;
(d) any obligations pursuant to Member State law adopted under Chapter IX;
(e) non-compliance with an order or a temporary or definitive limitation on processing or the suspension of data flows by the supervisory authority pursuant to Article 58(2) or failure to provide access in violation of Article 58(1).
6. Non-compliance with an order by the supervisory authority as referred to in Article 58(2) shall, in accordance with paragraph 2 of this Article, be subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.
7. Without prejudice to the corrective powers of supervisory authorities pursuant to Article 58(2), each Member State may lay down the rules on whether and to what extent administrative fines may be imposed on public authorities and bodies established in that Member State.
8. The exercise by the supervisory authority of its powers under this Article shall be subject to appropriate procedural safeguards in accordance with Union and Member State law, including effective judicial remedy and due process.
9. Where the legal system of the Member State does not provide for administrative fines, this Article may be applied in such a manner that the fine is initiated by the competent supervisory authority and imposed by competent national courts, while ensuring that those legal remedies are effective and have an equivalent effect to the administrative fines imposed by supervisory authorities. In any event, the fines imposed shall be effective, proportionate and dissuasive. Those Member States shall notify to the Commission the provisions of their laws which they adopt pursuant to this paragraph by 25 May 2018 and, without delay, any subsequent amendment law or amendment affecting them.
sse der Aufsichtsbehörden gemäß Artikel 58 Absatz 2 kann jeder Mitgliedstaat Vorschriften dafür festlegen, ob und in welchem Umfang gegen Behörden und öffentliche Stellen, die in dem betreffenden Mitgliedstaat niedergelassen sind, Geldbußen verhängt werden können.
Source: Regulation (EU) 2016/679 (see also recitals 148, 149, 150 and 152)
Section 43 BDSG (Provisions on administrative fines)
(1) Intentionally or negligently engaging in the following shall be deemed an administrative offence:
1. in violation of Section 30 (1) failing to treat a request for information properly, or
2. in violation of Section 30 (2), first sentence, failing to inform a consumer or doing so incorrectly, incompletely or too late.
(2) An administrative offence may be punished by a fine of up to fifty thousand euros.
(3) Authorities and other public bodies as referred to in Section 2 (1) shall not be subject to any administrative fines.
(4) A notification pursuant to Article 33 of Regulation (EU) 2016/679 or a communication pursuant to Article 34 (1) of Regulation (EU) 2016/679 may be used in proceedings pursuant to the Administrative Offences Act against the person required to provide a notification or a communication or relatives as referred to in Section 52 (1) of the Code of Criminal Procedure only with the consent of the person required to provide a notification or a communication.