But before everyone gets excited about the size of the fines, remember these are just “intentions” to fine, not actual fines. So, so far BA and Marriott have not been fined. They now have an opportunity to argue with the ICO about their cases and the level of fine, plus, the other data protection authorities (other EU “ICO”s) get to have their say too, not least of all to ensure a level enforcement playing field.
The other thing to note is that at this point we have no fine detail about the enforcement by the ICO. We can only go on what the statements include which for the BA case related to the website hack that lead to half a million customers being stolen and in the case of Marriott a cyber security incident. On the face of it therefore both relate to security issues/failings. But, what we don’t have is any insight (often written up in enforcement notices) of what the ICO are thinking, where the GDPR fits into it in terms of enforcement and indeed why the ICO believe the action they have taken is proportionate.
At this point therefore we can’t really tell why the fines are so high other than for the BA case we know that £183m is about 1.5% of turnover, so maybe here the key learning is that the ICO is looking at the their (GDPR-given) ability to issue percentages of turnover rather than put a price per head type fine, but we don’t know for sure. What’s particularly interesting is the Marriott incident affected significantly more than the 500k data subjects affected by the BA breach.
But, wow, what a way to start enforcing GDPR than with two enormous fines. Until now, despite the GDPR being in force for just over a year, we’ve not had any GDPR enforcement in the UK, and with the exception of the Google €50m fine by the French regulator last year, most other enforcements across the EU have been in the hundreds of thousands rather than the millions. So, not only will these possibly be the first UK GDPR fines to be issued but have the potential to be the largest across the EU.
Whether these statements are just a way for the ICO to show they can flex their muscles, whether we’ll actually see these fines come to fruition or whether this is the ICO stamping the UK”s GDPR credentials ahead of Brexit, I’ll leave the reader to decide. But whatever you do, what this space, because we’ve got some learning (and insight into the mind of the ICO) yet to come.