Tag: GDPR Fines

H&M receives record-breaking 35 Mio Euro GDPR Fine in Germany

21. October 2020

In the beginning of October, the Hamburg Data Protection Commissioner (“HmbBfDI”) imposed a record-breaking 35,258,707.95 Euro GDPR fine on the German branch of the Swedish clothing-retail giant H&M. It is the highest fine, based on a GDPR violation, a German Data Protection Authority has ever issued.

Since 2014, the management of the H&M service centre in Nuremberg extensively monitored the private lives of their employees in various ways. Following holidays and sick leaves of employees, team leaders would conduct so-called “Welcome Back Talks” in which they recorded employees’ holiday experiences, symptoms of illnesses and medical diagnoses. Some H&M supervisors gathered a broad data base of their employees’ private lives as they recorded details on family issues and religious beliefs from one-on-one talks and even corridor conversations. The recordings had a high level of detail and were updated over time and in some cases were shared with up to 50 other managers throughout the whole company. The H&M supervisors also used this Personal Data to create profiles of their employees and to base future employment decisions and measures on this information. The clandestine data collection only became known as a result of a configuration error in 2019 when the notes were accessible company-wide for a few hours.

After the discovery, the H&M executives presented the HmbBfDI a comprehensive concept on improving Data Protection at their Nuremberg sub-branch. This includes newly appointing a Data Protection coordinator, monthly Data Protection status updates, more strongly communicated whistleblower protection and a consistent process for granting data subject rights. Furthermore, H&M has apologised to their employees and paid the affected people a considerable compensation.

With their secret monitoring system at the service centre in Nuremberg, H&M severely violated the GDPR principles of lawfulness, fairness, and transparency of processing pursuant to Art. 5 no. 1 lit. a) and Art. 6 GDPR because they did not have a legal basis for collecting these Personal Data from their employees. The HmbBfDI commented in his statement on the magnitude of the fine saying that “the size of the fine imposed is appropriate and suitable to deter companies from violating the privacy of their employees”.

German State Data Protection Commissioner imposes 1.2 million € GDPR fine

1. July 2020

The German State Data Protection Commissioner of Baden-Württemberg (“LfDI Ba-Wü”)  imposed a GDPR fine of 1.240.000€ on the German statutory health insurance provider AOK Baden-Württemberg (“AOK”). The fine was a result of the health insurance’s lack of technical and organisational measures pursuant to Art. 32 GDPR. It is the highest fine the LfDI Ba-Wü has ever imposed.

Between 2015 and 2019 the AOK organised lotteries on various occasions and collected personal data of the participants, including their contact details and current health insurance affiliations. The AOK wanted to use the data of the lottery participants for advertising purposes, insofar as the participants gave their consent to this. To ensure the security of processing, the AOK implemented internal guidelines and data protection training of their staff as technical and organisatioal measures. However, these measures were not sufficient to comply with Art. 32 GDPR because AOK staff used the personal data of more than 500 lottery participants for advertising purposes without their prior consent.

Following the investigation of the LfDI Ba-Wü, the AOK immediately stopped all marketing activities in order to revise their internal policies and processes against the GDPR. The LfDI Ba-Wü explained that in determining the extent of the fine, it considered the following mitigating factors:

  • the cooperation of the AOK with the Data Protection Authority,
  • the fact that the AOK as a statutory health insurance provider is an important part of the German healthcare system, and
  • the burdens of the current Corona-Pandemic on the healthcare system.

Finally, the Commissioner pointed out that technical and organisational measures must be regularly adjusted to the actual conditions of each processing activity, in order to ensure an adequate level of data protection in the long term.

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.

Germany: Large Data leak reveals Personal Data of more than 3 Million Customers

27. January 2020

The German car rental company Buchbinder is responsible for leaking Personal Data of more than 3 Million customers from all over Europe. The data leak exposed more than 10 Terabyte of sensitive customer data over several weeks without the company noticing it.

A German cybersecurity firm was executing routine network scans when it found the data leak. The firm reported it twice to Buchbinder via e-mail, but did not receive a reply. After that, the cybersecurity firm reported the leak to the Bavarian Data Protection Authority (DPA) and informed the German computer magazine c’t and newspaper DIE ZEIT.

According to c’t, a configuration error of a Backup-Server was the cause of the leak. The Personal Data exposed included customers’ names, private addresses, birth dates, telephone numbers, rental data, bank details, accident reports, legal documents, as well as Buchbinder employees’ e-mails and access data to internal networks.

The data leak is particularly serious because of the vast amount of leaked Personal Data that could easily be abused through Spam e-mails, Fraud, Phishing, or Identity theft. It is therefore likely that the German DPA will impose a GDPR fine on the company in the future.

Buchbinder released a press statement apologising for the data leak and promising to enhance the level of their defense and cybersecurity system.

A short review of the Polish DPA’s enforcement of the GDPR

10. January 2020

To date, the Polish Data Protection Authority (DPA) have issued 134 decisions and imposed GDPR fines in 5 cases. In 4 cases, the Polish DPA fined private companies and in one case, it fined a public institution.

The fines for the companies ranged from 13.000€ to 645.000€. Reasons for the fines were failures in protecting personal data on websites resulting in the unauthorised access of personal data, inadequate technical and organisational measures, and an insufficient fulfilment of information obligations according to Art. 14 GDPR.

It is also noteworthy that the Polish DPA has imposed a 9.350€ fine on the Mayor of a Polish small town. Under Art. 83 (7) GDPR, each member state of the EU may lay down rules on whether and to what extent administrative fines may be imposed on public authorities. The Polish legislators decided that non-compliant public authorities may receive a GDPR fine of up to 23.475€.

The Mayor received the GDPR fine since he failed to conclude a data processing agreement with the entities to which he transferred data in violation of Art. 28 (3) GDPR. Moreover, the Mayor violated the principle of storage limitation, the principles of integrity and confidentiality, the principle of accountability and furthermore kept an incomplete record of processing activities.

Recently, the Polish DPA also published the EU Project T4DATA’s Handbook for Data Protection Officers (DPO) in order to help define a DPO’s role, their competencies and main responsibilities.

Germany: Telecommunications provider receives a 9.5 Million Euro GDPR fine

16. December 2019

The German Federal Commissioner for Data Protection and Freedom of Information (BfDI) has imposed a fine of 9.55 Million Euro on the major telecommunication services provider 1&1 Telecom GmbH (1&1). This is the second multimillion Euro fine that the Data Protection Authorities in Germany have imposed. The first fine of this magnitude (14.5 Million Euro) was imposed last month on a real estate company.

According to the BfDI, the reason for the fine for 1&1 was an inadequate authentication procedure within the company’s customer service department, because any caller to 1&1’s customer service could obtain extensive information on personal customer data, only by providing a customer’s name and date of birth. The particular case that was brought to the Data Protection Authority’s attention was based on a caller’s request of the new mobile phone number of an ex-partner.

The BfDI found that this authentication procedure stands in violation of Art. 32 GDPR, which sets out a company’s obligation to take appropriate technical and organisational measures to systematically protect the processing of personal data.

After the BfDI had pointed 1&1 to the their deficient procedure, the company cooperated with the authorities. In a first step, the company changed their two-factor authentication procedure to a three step authentication procedure in their customer service department. Furthermore, they are working on a new enhanced authentication system in which each customer will receive a personal service PIN.

In his statement, the BfDI explained that the fine was necessary because the violation posed a risk to the personal data of all customers of 1&1. But because of the company’s cooperation with the authorities, the BfDI set the fine at the lower end of the scale.

1&1 has deemed the fine “absolutely disproportionate” and has announced to file a suit against the penalty notice by the BfDI.