A Christmas Data Carol: Contentious Data Past, Current and Yet to Come

The end of the year is now firmly in sight, which is a somewhat scary prospect from a Christmas shopping perspective! That does however mean that, like Scrooge, it seemed a good time for us to look back at where we are with EU/UK GDPR enforcement to see what the future may hold….

Contentious Data Past and Current

So, first to the past. EU/UK data protection authorities (DPAs) have now issued more than 1900 fines between them, totalling some €4.4 billion. An impressive amount after a slow start, albeit nowhere near the amounts that competition authorities have been levying. 

The Courts have also got in on the action, as the complexity of the GDPR’s interpretation has led to more than 50 cases being referred to the Court of Justice of the European Union (CJEU). Further questions have been considered by national courts, including in appeals of DPA decisions. 

However, we have continued to see that it is not just DPAs who are interested in regulating data, as competition and financial regulators have taken an increasing interest in this area. Inevitably this has led to some tensions as to respective regulators’ roles and remits, with even the CJEU having to get involved to help clarify this.

Contentious Data Yet to Come

Like the spirits of Christmas Yet to Come, we think past developments in contentious data provide an insight as to what lies ahead. In our apparition for UK contentious data next year we therefore see no “bah humbugs” but instead:

• Greater focused regulatory enforcement on the greatest risks, ie around the processing of the most sensitive data and for the most sensitive data subjects 
• Greater use of public reprimands for a broader range of data controllers and wider types of GDPR infringement
• Less uncertainty on the level of fines with the expected finalisation of the ICO’s draft fining guidance
• An even higher bar for data related class actions.

That said, just with Scrooge, if behaviours change, this can change the future outlook, so, as ever, it is a matter of watching this space to see how this area evolves. 

More detail on our thoughts on this topic can be found in our publication on Key developments in contentious DP.