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ICO issues new data protection fining guidance

The Information Commissioner’s Office (ICO) has published new Data Protection Fining Guidance which covers the circumstances in which the ICO would consider it appropriate to issue a fine, and how the ICO determines the amount of any fine imposed.

The maximum amount of fines has not changed, and still sits at £17.5m or 4 per cent of total annual worldwide turnover.

When deciding whether to issue a fine, the ICO will assess each case on an individual basis. However, they must have regard to the factors listed in Article 83 UK GDPR, as well as ensuring that the fine imposed is effective, proportionate and dissuasive.

Factors to consider include:

  • the nature, gravity and duration of the infringement
  • the intentional or negligent character of the infringement
  • any action taken by the controller or processor to mitigate the damage suffered by data subjects
  • the degree of responsibility of the controller or processor taking into account technical and organisational measures implemented by them
  • any relevant previous infringements
  • the degree of cooperation with the ICO, in order to remedy the infringement and mitigate the possible adverse effects of the infringement
  • the categories of personal data affected by the infringement
  • the manner in which the infringement became known to the ICO
  • where measures referred to in Article 58(2) UK GDPR have previously been ordered against the controller or processor concerned with regard to the same subject-matter
  • adherence to approved codes of conduct pursuant to Article 40 UK GDPR or approved certification mechanisms pursuant to Article 42 UK GDPR
  • 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.

Further information is available from Hempsons

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