Category: The Netherlands

Dutch DPA issues highest fine for GDPR violations

14. April 2022

On April 7th, 2022, the Dutch Data Protection Authority, Autoriteit Persoonsgegevens, imposed the highest-ever fine for data protection violations, amounting to € 3.7 million. It is directed against the Minister of Finance, who was the data controller for the Tax and Customs Administration’s processing operations. The reason for this is the years of unlawful processing of personal data in the Fraud Notification Facility application, a blacklist in which reports and suspected fraud cases were registered.

The investigation revealed several violations of principles and other requirements of the GDPR. Firstly, there was no legal basis for the processing of the personal data included in the list, making it unlawful under Art. 5 (1) (a), Art. 6 (1) GDPR. Secondly, the pre-formulated purposes of collecting the personal data were not clearly defined and thus did not comply with the principle of purpose limitation stipulated in Art. 5 (1) (b) GDPR. Moreover, the personal data were often incorrect and non-updated, which constituted a violation of the principle of accuracy according to Art. 5 (1) (d) GDPR. Since the personal data were also kept longer than the applicable retention period allowed, they were not processed in accordance with the principle of storage limitation as laid down in Art. 5 (1) (e) GDPR. Furthermore, the security of the processing according to Art. 32 (1) GDPR was not ensured by appropriate technical and organizational measures. In addition, the internal Data Protection Officer was not involved properly and in a timely manner in the conduct of the Data Protection Impact Assessment pursuant to Art. 38 (1), 35 (2) GDPR.

The amount of the fine imposed results from the severity, consequences and duration of the violations. With the Fraud Notification Facility, the rights of 270,000 people have been violated in over six years. They were often falsely registered as (possible) fraudsters, which caused them to suffer serious consequences. It left many unable to obtain a payment agreement or eligible for debt rescheduling and therefore, in financial insecurity. The Tax and Customs Administration also used discriminatory practices. Employees were instructed to assess the risk of fraud based on people’s nationality and appearance, among other factors.

The DPA also considered previous serious infringements in determining the amount of the fine. The Minister of Finance was penalized in 2018 for inadequate security of personal data, in 2020 for illegal use of the citizen service number in the VAT identification number of self-employed persons, and in 2021 for the discriminatory and illegal action in the childcare benefits scandal. Following the latter affair, the Fraud Notification Facility was shut down in February 2020.

The Minister of Finance can appeal the decision within six weeks.

Dutch data protection authority imposes fine of €525,000

23. March 2022

The Dutch Data Protection Authority, autoriteit persoonsgegevens (hereinafter “ap”) imposed a fine of €525,000 on DPG Media at the beginning of March.

The background to the fine were access and deletion requests of various data subjects who had a newspaper subscription or received increased advertising. If a data subject wanted to know what personal data the company had collected about him, he had to send an ID document to DPG Media to prove his identity. The same applied to anyone who asked the company to delete their data. The customer was supposed to either upload a scan of his ID document or send it to the company by mail or letter.

DPG Media’s procedure for proof of identity was criticized for several reasons. From ap’s point of view, too much data was requested and it was made too difficult for the data subjects to assert their rights to access and deletion. If, for example, DPG Media had requested blackened ID documents, this method of proof of identity would also have been questionable. The ap emphasizes that requesting blackened ID documents is often disproportionate.

It also notes that ID documents are documents that are particularly worthy of protection. Especially regarding possible identity theft, they must be handled very carefully.

Thus, ap clarifies that, even if an identification document is in principle suitable for identifying the data subject, less intrusive identifiers should be used in preference. Milder identifiers, but equally suitable in this specific case, are for example to request the postal address for a telephone inquiry or – as recital 57 states – the use of an “authentication mechanism such as the same credentials, used by the data subject to log-in to the online service offered by the data controller.“

(Update) Processing of COVID-19 immunization data of employees in EEA countries

21. January 2022

With COVID-19 vaccination campaigns well under way, employers are faced with the question of whether they are legally permitted to ask employees about their COVID-19 related information and, if so, how that information may be used.

COVID-19 related information, such as vaccination status, whether an employee has recovered from an infection or whether an employee is infected with COVID-19, is considered health data. This type of data is considered particularly sensitive data in most data protection regimes, which may only be processed under strict conditions. Art. 9 (1) General Data Protection Regulation (GDPR)(EU), Art. 9 (1) UK-GDPR (UK), Art. 5 (II) General Personal Data Protection Law (LGPD) (Brazil), para. 1798.140. (b) California Consumer Privacy Act of 2018 (CCPA) (California) all consider health-related information as sensitive personal data. However, the question of whether COVID-19-related data may be processed by an employer is evaluated differently, even in the context of the same data protection regime such as the GDPR.

Below, we discuss whether employers in different European Economic Area (EEA) countries are permitted to process COVID-19-related data about their employees.

Austria: The processing of health data in context of the COVID-19 pandemic can be based on Article 9 (2) (b) of the GDPR in conjunction with the relevant provisions on the duty of care (processing for the purpose of fulfilling obligations under labor and social law). Under Austrian labor law, every employer has a duty of care towards its employees, which also includes the exclusion of health hazards in the workplace. However, this only entitles the employer to ask the employee in general terms whether he or she has been examined, is healthy or has been vaccinated. Therefore, if the legislator provides for two other equivalent methods to prove a low epidemiological risk in addition to vaccination, the current view of the data protection authority is that specific questioning about vaccination status is not possible from a data protection perspective. An exception to this is only to be seen in the case of an explicit (voluntary) consent of the employee (Art. 9 (2) a) GDPR), but a voluntary consent is not to be assumed as a rule due to the dependency relationship of the employee.
As of November, employees will be obliged to prove whether they have been vaccinated, recovered from a COVID-19 infection or recently tested negative if they have physical contact with others in enclosed spaces, such as the office.

Austria was the first EU country to introduce mandatory Corona vaccination. From the beginning of February, Corona vaccination will be mandatory for all persons over 18 years of age, otherwise they will face fines of up to 3,600 euros from mid-March.

Belgium: In Belgium, there is no legal basis for the processing of vaccination information of employees by their employer. Article 9 (1) GDPR prohibits the processing of health data unless an explicit exception under Article 9 (2) GDPR applies. Such an exception may be a legal provision or the free and explicit consent of the data subject. Such a legal provision is missing and in the relationship between employee and employer, the employee’s consent is rarely free, as an employee may be under great pressure to give consent. The Belgian data protection authority explicitly denies the employer’s right to ask.

The Belgian government plans to make vaccination mandatory for health workers from April 2022.

Finland: The processing of an employee’s health data is only permitted if it is directly necessary for the employment relationship. The employer must carefully assess whether this necessity exists. It is not possible to deviate from this necessity by obtaining the employee’s consent. The employer may process an employee’s health data if this is necessary for the payment of sick pay or comparable health-related benefits or to establish a legitimate reason for the employee’s absence. The processing of health data is also permitted if an employee expressly requests that his or her ability to work be determined on the basis of health data. In addition, the employer is entitled to process an employee’s health data in situations expressly provided for by law. The employer may require occupational health care to provide statistical data on the immunization coverage of its employees.

France: In general employers may not require their employees to disclose whether they have been vaccinated, unless specific circumstances determined by law apply.

In France, mandatory vaccination has been in effect since mid-September for healthcare workers, i.e., employees of hospitals, retirement and nursing homes, care services, and employees of emergency services and fire departments.

Since July 21st, 2021, a “health passport” is mandatory for recreational and cultural facilities with more than 50 visitors, such as theaters, cinemas, concerts, festivals, sports venues. The health passport is a digital or paper-based record of whether a person has been vaccinated, recovered within 11 days to 6 months, or tested negative within 48 hours. Due to the Health Crisis Management Law No 2021-1040 of August 5, 2021 there are several workplaces where the health pass is mandatory for employees since August 30th, 2021. These include bars, restaurants, seminars, public transport for long journeys (train, bus, plane The health passport is also mandatory for the staff and visitors of hospitals, homes for the elderly, retirement homes, but not for patients who have a medical emergency.Visitors and staff of department stores and shopping malls need to present a health pass in case the prefect of the department decided this necessary. In these cases, the employer is obliged to check if his employees meet their legal obligations. However, the employer should not copy and store the vaccination certificates, but only store the information whether an employee has been vaccinated. Employers who do not fall into these categories are not allowed to process their employees’ vaccination data. In these cases, only occupational health services may process this type of information and the employer may not obtain this information under any circumstances. At most, he may obtain a medical opinion on whether an employee is fit for work.

Germany: Processing of COVID-19-related information is generally only allowed for employers in certain industries. Certain employers named in the law, such as in §§ 23a, 23 Infection Protection Act (IfSG), employers in certain health care facilities (e.g. hospitals, doctors’ offices, rescue services) and § 36 (3) IfSG, such as day care centers, outpatient care services, schools, homeless shelters or correctional facilities, are allowed to process the vaccination status of their employees.

Other employers are generally not permitted to inquire about the vaccination status of employees. But since §28b IfSG came into force on November 24, 2021, employees may only be granted access to company premises if they can prove that they have either been vaccinated, recently recovered or tested negative (so-called “3G status”). In this context, employers may require employees to provide proof of one of the three statuses but may not specifically ask about vaccination status. When it comes to processing and storing information obtained during access control, for data protection reasons, this information must be limited to the fact that employees have access to the premises (taking into account their documented status) and how long this access authorization has existed.

Under current law, while “vaccinated” status does not expire, the information may only be stored for 6 months. “Recently recovered” status is only valid for three months. After that, they must provide other proof that they meet one of the 3G criteria. A negative test is valid for either 24 or 48 hours, depending on the type of test.

Since November 2021, employers are required to verify whether an employee who has been sanctioned with a quarantine for COVID-19 infection was or could have been vaccinated prior to the infection. Under the fourth sentence of Section 56 (1) of the IfSG, an employee is not entitled to continued payment for the period of quarantine if the employee could have avoided the quarantine, e.g., by taking advantage of a vaccination program. The employer must pay the compensation on behalf of the competent authority. As part of this obligation to make an advance payment, the employer is also obliged to check whether the factual requirements for granting the benefits are met. The employer is therefore obliged to obtain information on the vaccination status of its employee before paying the compensation and to decide on this basis whether compensation can be considered in the individual case. The data protection law basis for this processing activity is Section 26 (3) of the German Federal Data Protection Act (BDSG), which permits the processing of special categories of personal data – if this is necessary for the exercise of rights or the fulfillment of legal obligations under labor, social insurance and social protection law and there is no reason to assume that the interests of the data subjects worthy of protection in the exclusion of the processing outweigh this. The Data Protection Conference, an association of German data protection authorities, states that processing the vaccination status of employees on the basis of consent is only possible if the consent was given voluntarily and thus legally valid, Section 26 (3) sentence 2 and (2) BDSG. Due to the relationship of superiority and subordination existing between employer and employee, there are regularly doubts about the voluntariness and thus the legal validity of the employees’ consent.

If employers are allowed to process the vaccination status of their employees, they should not copy the certificates, but only check to see if an employee has been vaccinated.

A mandatory vaccination for all german citizens is being discussed.

Greece: Corona vaccination became mandatory for nursing home staff in mid-August and for the healthcare sector on September 1. Since mid-September, all unvaccinated professionals have had to present a negative Corona rapid test twice a week – at their own expense – when they go to work.

Italy: Since October 15, Italy has become the first country in the EEA to require all workers to present a “green passport” at the workplace. This document records whether a person has been vaccinated, recovered, or tested. A general vaccination requirement has been in effect for health care workers since May, and employees in educational institutions have been required to present the green passport since September. In mid-October, mandatory vaccination was extended to employees of nursing homes.

Netherlands: Currently, there is no specific legislation that allows employers to process the vaccination data of their employees. Government guidelines for employers state that neither testing nor vaccination can be mandated for employees. Only occupational health services and company physicians are allowed to process vaccination data, for example, when employees are absent or reinstated. The Minister of Health, Welfare and Sport has announced that he will allow the health sector to determine the vaccination status of its employees. He also wants to examine whether and how this can be done in other work situations. Currently, employers can only offer voluntary testing in the workplace, but are not allowed to document or enforce the results of such tests.

Spain: Employers are allowed to ask employees if they have been vaccinated, but only if it is proportionate and necessary for the employer to fulfill its legal obligation to ensure health and safety in the workplace. However, employees have the right to refuse to answer this question. Before entering the workplace, employees may be asked to provide a negative test or proof of vaccination if the occupational health and safety provider deems it necessary for the particular workplace.

Dutch Minister of Finance fined 2.75 million Euro for discriminatory and unlawful data processing

4. January 2022

On December 8th, 2021, the Autoriteit Persoonsgegevens (the Dutch Data Protection Authority (DPA)) announced that it had fined the Belastingdienst (the Dutch Tax Administration) €2.75 million. The fine was imposed because, as part of the so-called Toeslagenaaffaire (Childcare Benefit Affair), the Belastingdienst processed data on the (dual) nationality of childcare benefit claimants in an unlawful, discriminatory and therefore unlawful manner over many years, in serious breach of the principles of the General Data Protection Regulation (GDPR).

In the 2010s, the Belastingdienst wrongly reclaimed child benefits from tens of thousands of parents. Even minor formal errors in filling out the forms led to enormous claims, and a supposedly false citizenship could lead to years of stigmatizing fraud investigations. As a result, many families who relied on government assistance were driven into bankruptcy. The Belastingdienst should have deleted the data on dual nationality of Dutch nationals in January 2014, as from that date the dual nationality of Dutch nationals no longer played a legal role in the assessment of applications for childcare benefits. Nevertheless, the Belastingdienst retained and used these data. In May 2018, there were still about 1.4 million people with dual nationality registered in the Belastingdienst’s systems. What initially appeared to be a simple administrative failure has evolved over the years into a major scandal. The final report of the investigative commission, presented in December, concludes that the tax offices systematically preyed on innocent citizens. The Belastingdienst also used the nationality of applicants as an indicator in a system that automatically classified certain applications as risky. Again, the data were not necessary for this purpose. Under the General Data Protection Regulation, it is unlawful to process data on nationality in a discriminatory manner, as the data processing must not violate fundamental rights. These include the right to equality and non-discrimination. Under the GDPR, it is unlawful to process personal data on nationality in a discriminatory manner, as the data processing must not violate fundamental rights. These include the right to equality and non-discrimination. In addition, personal data may only be processed and stored for a specific, predetermined purpose. Processing without a purpose is inadmissible, and here there was no purpose, as nationality is legally irrelevant for the assessment of applications for childcare benefits.

In the statement DPA chair Aleid Wolfsen is quoted:

The government has exclusive responsibility for lots of things. Members of the public don’t have a choice; they are forced to allow the government to process their personal data.
That’s why it’s crucial that everyone can have absolute confidence that this processing is done properly. That the government doesn’t keep and process unnecessary data about individuals. And that there is never any element of discrimination involved in an individual’s contact with the government.
That went horribly wrong at the Benefits Office, with all the associated consequences. Obviously this fine cannot undo any of the harm done. But it is an important step within a broader recovery process.

In the wake of the DPA investigation, the Belastingdienst began to clean up its internal systems. In the summer of 2020, the dual nationalities of Dutch nationals were completely deleted from the systems. According to the DPA, since October 2018, the Belastingdienst no longer uses the nationality of applicants to assess risk. And since February 2019, it no longer uses the data to fight organized fraud. The fine was imposed on the Minister of Finance because he is responsible for the processing of personal data within the Belastingdienst.

Processing of COVID-19 immunization data of employees in EEA countries

27. October 2021

As COVID-19 vaccination campaigns are well under way, employers are faced with the question of whether they are legally permitted to ask employees about their COVID-19 related information (vaccinated, recovered, test result) and, if so, how that information may be used.

COVID-19 related information, such as vaccination status, whether an employee has recovered from an infection or whether an employee is infected with COVID-19, is considered health data. This type of data is considered particularly sensitive data in most data protection regimes, which may only be processed under strict conditions. Art. 9 (1) General Data Protection Regulation (GDPR)(EU), Art. 9 (1) UK-GDPR (UK), Art. 5 (II) General Personal Data Protection Law (LGPD) (Brazil), para. 1798.140. (b) California Consumer Privacy Act of 2018 (CCPA) (California) all consider health-related information as sensitive personal data. However, the question of whether COVID-19-related data may be processed by an employer is evaluated differently, even in the context of the same data protection regime such as the GDPR.

The following discusses whether employers in various European Economic Area (EEA) countries are permitted to process COVID-19-related information about their employees.

Austria: The processing of health data in context of the COVID-19 pandemic can be based on Article 9 (2) (b) of the GDPR in conjunction with the relevant provisions on the duty of care (processing for the purpose of fulfilling obligations under labor and social law). Under Austrian labor law, every employer has a duty of care towards its employees, which also includes the exclusion of health hazards in the workplace. However, this only entitles the employer to ask the employee in general terms whether he or she has been examined, is healthy or has been vaccinated. Therefore, if the legislator provides for two other equivalent methods to prove a low epidemiological risk in addition to vaccination, the current view of the data protection authority is that specific questioning about vaccination status is not possible from a data protection perspective. An exception to this is only to be seen in the case of an explicit (voluntary) consent of the employee (Art. 9 (2) a) GDPR), but a voluntary consent is not to be assumed as a rule due to the dependency relationship of the employee.
As of November, employees will be obliged to prove whether they have been vaccinated, recovered from a COVID-19 infection or recently tested negative if they have physical contact with others in enclosed spaces, such as the office.

Belgium: In Belgium, there is no legal basis for the processing of vaccination information of employees by their employer. Article 9 (1) GDPR prohibits the processing of health data unless an explicit exception under Article 9 (2) GDPR applies. Such an exception may be a legal provision or the free and explicit consent of the data subject. Such a legal provision is missing and in the relationship between employee and employer, the employee’s consent is rarely free, as an employee may be under great pressure to give consent. The Belgian data protection authority also explicitly denies the employer’s right to ask.

Finland: The processing of an employee’s health data is only permitted if it is directly necessary for the employment relationship. The employer must carefully verify whether this necessity exists. It is not possible to deviate from this necessity by obtaining the employee’s consent. The employer may process an employee’s health data if this is necessary for the payment of sick pay or comparable health-related benefits or to establish a justified reason for the employee’s absence. The processing of health data is also permitted if an employee expressly requests that his or her ability to work be determined on the basis of health data. In addition, the employer is entitled to process an employee’s health data in situations expressly provided for elsewhere in the Act. The employer may request from occupational health care statistical data on the vaccination protection of its employees.

France: Since July 21st, 2021, a “health passport” is mandatory for recreational and cultural facilities frequented by more than 50 people, such as theaters, cinemas, concerts, festivals, sports venues. The health passport is a digital or paper-based record of whether a person has been vaccinated, recovered within 11 days to 6 months, or tested negative within 48 hours. There are several workplaces where vaccination has been mandatory for workers since August 30th, 2021. These include bars, restaurants, seminars, public transport for long journeys (train, bus, plane). The health passport is also mandatory for the staff and visitors of hospitals, homes for the elderly, retirement homes, but not for patients who have a medical emergency. Also, visitors and staff of department stores and shopping malls need to present a health pass in case the prefect of the department decided this necessary. In these cases, the employer is obliged to check if his employees meet their legal obligations. However, the employer should not copy and store the vaccination certificates, but only store the information whether an employee has been vaccinated. Employers who do not fall into these categories are not allowed to process their employees’ vaccination data. In these cases, only occupational health services may process this type of information, but the employer may not obtain this information under any circumstances. At most, he may obtain a medical opinion on whether an employee is fit for work.

Germany: Processing of COVID-19 related information is generally only permitted for employers in certain sectors. Certain employers named in the law, such as in §§ 23a, 23 Infection Protection Act (IfSG), employers in certain health care facilities (e.g. hospitals, doctors’ offices, rescue services, ) and § 36 (3) IfSG, such as day care centers, outpatient care services, schools, homeless shelters or correctional facilities, are allowed to process the vaccination status of their employees. Other employers are generally not permitted to inquire about the vaccination status of employees. If allowed to process their employee’s vaccination status, employers should not copy the certificates but only check whether an employee is vaccinated. Although there has been an ongoing discussion in the federal government for several weeks about introducing a legal basis that would allow all employers to administer vaccination information. From November 2021, employers must check whether an employee who has been sanctioned with a quarantine due to a COVID-19 infection was or could have been vaccinated prior to the infection. According to Section 56 (1) sentence 4 IfSG, there is no entitlement to continued payment of remuneration for the period of quarantine if the employee could have avoided the quarantine, e.g. by taking advantage of a vaccination program. The employer must pay the compensation on behalf of the competent authority. As part of this obligation to pay in advance, the employer is also obliged to check whether the factual requirements for the granting of benefits are met. The employer is therefore obliged to obtain information on the vaccination status of its employee before paying compensation and, on this basis, to decide whether compensation can be considered in the individual case. The data protection basis for this processing activity is Section 26 (3) of the German Federal Data Protection Act (BDSG), which permits the processing of special categories of personal data – if this is necessary for the exercise of rights or the fulfillment of legal obligations arising from labor law, social security law and social protection law, and if there is no reason to assume that the data subjects’ interest in the exclusion of the processing, which is worthy of protection, outweighs this. The Data Protection Conference, an association of German data protection authorities, states that processing the vaccination status of employees on the basis of consent is only possible if the consent was given voluntarily and therefore legally effective, Section 26 (3) sentence 2 and (2) BDSG. Due to the relationship of superiority and subordination existing between employer and employee, there are regularly doubts about the voluntariness and thus the legal validity of the employees’ consent.

Italy: Since October 15, Italy has become the first country in the EEA to require all workers to present a “green passport” at the workplace. This document records whether a person has been vaccinated, recovered, or tested. A general vaccination requirement has been in effect for health care workers since May, and employees in educational institutions have been required to present the green passport since September.

Netherlands: Currently, there is no specific legislation that allows employers to process employee immunization data. Only the occupational health service and company doctors are allowed to process immunization data, for example when employees are absent or reintegrated. The Minister of Health, Welfare and Sport has announced that he will allow the health sector to determine the vaccination status of its employees. He also wants to examine whether and how this can be done in other work situations. Currently, employers can only offer voluntary testing in the workplace, but are not allowed to document the results of such tests or force

Spain: Employers are allowed to ask employees if they have been vaccinated, but only if it is proportionate and necessary for the employer to fulfill its legal obligation to ensure health and safety in the workplace. However, employees have the right to refuse to answer this question. Before entering the workplace, employees may be asked to provide a negative test or proof of vaccination if the occupational health and safety provider deems it necessary for the particular workplace.

Dutch data protection authority imposes fine of €525,000

10. June 2021

Company fails to appoint an EU representative. Dutch data protection authority imposes fine of €525,000.

The Dutch Data Protection Authority (Autoriteit Persoonsgegevens) imposed a fine of €525,000 on Locatefamily.com on May 12, 2021. The company failed to comply with its obligation under Article 27 of the EU General Data Protection Regulation, which required the company to appoint a representative in the EU.

The online platform caught the attention of the authorities because it published the contact details (including telephone numbers and addresses) of individuals. In this regard, the Dutch data protection authority stated that data subjects had often not registered for the online platform. In particular, the data subjects did not know how the company had obtained their data.

After numerous complaints from individuals, the data protection authority determined that the online platform had not complied with requests to delete data. It further came to light that the company had no branches in the EU and had not appointed a representative accordingly. This made it almost impossible for data subjects to assert their rights against the company.

Article 27(2)(a) of the GDPR provides that companies not established in the EU that offer goods or services to persons in the EU or monitor the conduct of persons in the EU must designate a representative in the EU. Although exceptions to this are possible, they are narrowly defined.

An exemption may be considered if the processing of personal data is occasional and does not involve the extensive processing of sensitive personal data or the processing of personal data in connection with criminal convictions and offenses. The processing must also not, taking into account the nature, context, scope and purposes of the processing, result in a risk to the rights and freedoms of natural persons.

As no exceptional case existed in the assessment of the Dutch data protection authority, the company imposed a fine in the amount of €525,000 on Locatefamily.com. To avoid further penalties, the company was to appoint an EU representative by a certain deadline.

Dutch data scandal: illegal trade of COVID-19 patient data

19. February 2021

In recent months, a RTL Nieuws reporter Daniël Verlaan has discovered widespread trade in the personal data of Dutch COVID-19 test subjects. He found ads consisting of photos of computer screens listing data of Dutch citizens. Apparently, the data had been offered for sale on various instant messaging apps such as Telegram, Snapchat and Wickr. The prices ranged from €30 to €50 per person. The data included home addresses, email addresses, telephone numbers, dates of birth and BSN identifiers (Dutch social security number).

The personal data were registered in the two main IT systems of the Dutch Municipal Health Service (GGD) – CoronIT, containing details about citizens who took a COVID-19 test, and HPzone Light, a contact-tracing system, which contains the personal data of people infected with the coronavirus.

After becoming aware of the illegal trade, the GGD reported it to the Dutch Data Protection Authority and the police. The cybercrime team of the Midden-Nederland police immediately started an investigation. It showed that at least two GGD employees had maliciously stolen the data, as they had access to the official Dutch government COVID-19 systems and databases. Within 24 hours of the complaint, two men were arrested. Several days later, a third suspect was tracked down as well. The investigation continues, since the extent of the data theft is unclear and whether the suspects in fact managed to sell the data. Therefore, more arrests are certainly not excluded.

Chair of the Dutch Institute for Vulnerability Disclosure, Victor Gevers, told ZDNet in an interview:

Because people are working from home, they can easily take photos of their screens. This is one of the issues when your administrative staff is working from home.

Many people expressed their disapproval of the insufficient security measures concerning the COVID-19 systems. Since the databases include very sensitive data, the government has a duty to protect these properly in order to prevent criminal misuse. People must be able to rely on their personal data being treated confidentially.

In a press release, the Dutch police also raised awareness of the cybercrime risks, like scam or identity fraud. Moreover, they informed about the possibilities of protection against such crimes and the need to report them. This prevents victims and allows the police to immediately track down suspects and stop their criminal practices.

GDPR fines and data breach reports increased in 2020

12. February 2021

In 2020 a total of €158.5 million in fines were imposed, research by DLA Piper shows. This represents a 39% increase compared to the 20 months the GDPR was previously in force since May 25th, 2018.

Since that date, a total of € 272.5 million in fines have been imposed across Europe under the General Data Protection Regulation (“GDPR”). Italian authorities imposed a total of € 69.3 million, German authorities € 69.1 million, and French authorities 54.4 million. This calculation does not include two fines against Google LLC and Google Ireland Limited totalling € 100 million  (€ 60million + € 40million) and a fine of € 35 million against Amazon Europe Core issued by the French data protection authority “Commission nationale de l’informatique et des libertés” (“CNIL”) on December 10th, 2020, (please see our respective blog post), as proceedings on these fines are pending before the Conseil d’Etat.

A total of 281,000 data breaches were reported during this period, although the countries that imposed the highest fines were not necessarily those where the most data breaches were reported. While Germany and the UK can be found in the top of both lists, with 77,747 data breaches reported in Germany, 30,536 in the UK and 66,527 in the Netherlands, only 5,389 data breaches were reported in France and only 3,460 in Italy.

Although the biggest imposed fine to date still is a fine of € 50 million issued by CNIL against Google LLC in January 2019 (please see our respective blog post) a number of high-profile fines were imposed in 2020, with 6 of the top 10 all time fines being issued in 2020 and one in 2021.

1. H&M Hennes & Mauritz Online Shop A.B. & Co. KG was fined € 35 million for monitoring several hundred employees (please see our respective blog post).

2. TIM (Italian telecommunications operator) was fined € 27 million for making unwanted promotion calls.

3. British Airways was fined € 22 million for failing to protect personal and financial data of more than 400,000 customers (please see our blog post)

4. Marriott International was fined € 20 million for a data breach affecting up to 383 million customers (please see our respective blog post)

5. Wind Tre S.p.A. was fined € 17 million for unsolicited marketing communications.

A comparison of the highest fines shows that most of them were imposed due to an insufficient legal basis for the processing of personal data (Art. 5 & 6 GDPR) or due to insufficient technical and organizational measures to ensure an appropriate level of security (Art. 32 GDPR).

While the European authorities have shown their willingness to enforce the GDPR rules, they have also shown leniency due to the impact that the COVID 19 pandemic has had on businesses. At least in part due to the impact of the pandemic, the penalties planned by the UK ICO have been softened. A planned fine of €205 million for British Airways was reduced to €22 million and a planned fine of €110 million for Marriott International was reduced to €20 million. GDPR investigations are also often lengthy and contentious, so the increased fines may in part be due to more investigations having had sufficient time to be completed. For example, the dispute over the above fines for British Airways and Marriott International has already started in 2019.

Not only the fines but also the number of data breach notifications increased in 2020. In 2020 121,165 data breaches were reported, an average of 331 notifications per day, compared to 278 per day in 2019. In terms of reported data breaches per 100,000 inhabitants, there is a stark contrast between Northern and Southern European countries. In 2020, Denmark recorded 155.6 data breaches per 100,000 inhabitants, the Netherlands 150, Ireland 127.8, while Greece, Italy and Croatia reported the lowest number of data breaches per inhabitant.

The trend shows that the GDPR is being taken more and more seriously by companies and authorities, and this trend is likely to continue as authorities become more confident in enforcing the GDPR. Fines are only likely to increase, especially as none of the fines imposed so far even come close to the maximum possible amount of 4% of a company’s global annual turnover. The figures also show that while the laws are in principle the same and are supposed to be applied the same in all EEA countries, nations have different approaches to interpreting and implementing them. In the near future, we can expect to see the first penalties resulting from the GDPR restrictions on data transfers to third countries, especially in the aftermath of the Schrems II ruling on data transfers to the USA.

Dutch DPA administers record €725 000 fine for GDPR violation

6. May 2020

The Dutch Data Protection Authority, Autoriteit Persoonsgegevens (Dutch DPA), has issued a EUR 725 000 fine on April 30th to a company for scanning the fingerprints of its employees in order to record attendance.

As fingerprints fall under sensitive data according to Art. 9 GDPR, by being biometric data and therefore can easily identify a data subject, the Dutch DPA has addressed two exceptions in the present case: explicit consent according to Art. 9 II a GDPR, and the necessity of the processing for security reasons, which are related back to Art.9 II g GDPR.

According to the Dutch DPA, none of the two exceptions apply.

In the first case, the Dutch DPA states that the employer has shown no proof of valid explicit consent of the employees. Rather, the Dutch DPA is of the opinion that in an employment relationship, consent cannot be given freely. While it is tricky to ensure freely given consent in situations where one side is dependant on the other, it is possible to ensure such a freely given consent by the means of offering an alternative form of processing, allowing the employee to choose from two options according to their own judgement. In the case brought to the Dutch DPA, this had not been the case. Rather, employees felt obligated to give their consent, especially since the denial resulted in a personal meeting with the director. An alternative option to scanning their fingerprints was not given by the company.

The second exception of the necessity of the processing for security reasons was also dismantled by the Dutch DPA. It reasoned with the fact that such an exception only applies in cases where the security of the systems or the building depend on biometric data, and cannot be done by a less invasive method. While the activities of the company remain confidential, the Dutch DPA has denied them to be of that level of importance that security can only be done through biometrics. Therefore, the fingerprint scanning in the matter was unnecessary and disproportionate to the invasion of the employees’ privacy.

As this case shows, it is recommendable to be careful with the processing of biometric data. In particular, companies should ensure to have valid consent before progressing with the processing of sensitive data to mitigate the risks of a fine.

Dutch DPA fines Tennis Association

12. March 2020

The Dutch Data Protection Authority has fined the Royal Dutch Tennis Association (“KNLTB”) with EUR 525,000 for selling personal data of more than 350,000 of its members to sponsors who had contacted some of the members by mail and telephone for direct marketing purposes.

In 2018, the KNLTB illegally provided personal data of its members to two sponsors for a fee. One sponsor received personal data from 50,000 members and the other sponsor from more than 300,000 members. It turned out that the KNLTB sold personal data such as name, gender and address to third parties without obtaining consent of the data subjects.

The KNLTB found that it had a legitimate interest in selling the data. However, the data protection authority rejected the existence of a legitimate interest for the sale of the data and therefore decided that there was no legal basis for the transfer of the personal data to the sponsors. The KNLTB has objected to the fine decision. The Dutch Data Protection Authority will assess this.

 

 

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