Top 10 EU and UK Data Breach fines of 2021: a selection – Suneet Sharma

This is my selection of the top 5 data breach fines in the EU and the United Kingdom in 2021, many of which have featured in our Law and Media Round Ups over the past year.

EU Fines

  1. Amazon Europe Core S.a.r.l €746,000,000

 Luxembourg’s National Commission for Data Protection issued a fine under the GDPR to Amazon Europe Core S.a.r.l. Amazon plans to appeal the penalty stating “there has been no data breach, and no customer data has been exposed to any third party… these facts are undisputed. We strongly disagree with the CNPD’s ruling.” Whilst Luxembourg’s national data protection law precludes the Commission from commenting on individual cases Amazon disclosed the fine in a filing of its quarterly results with the US Securities and Exchange Commission.

From what we can gather the fine came following a May 2018 complaint by La Quadrature du Net.  The fine is by far the biggest under the GDPR to date.

Bloomberg has the initial report. The fine attracted much coverage from the BBCPinsent Masons and the Hunton Privacy Blog.

  1. Whatsapp Ireland Ltd   €225,000,000

On 2 September 2021 the Irish Data Protection Commission announced a fine of €225,000,000 to Whatsapp. The investigation began on 10 December 2018 and it examined whether WhatsApp has discharged its GDPR transparency obligations with regard to the provision of information and the transparency of that information to both users and non-users of WhatsApp’s service. This includes information provided to data subjects about the processing of information between WhatsApp and other Facebook companies.

The case is notable due to its cross-border nature, which required data protection authorities in France, Germany and the Netherlands to consider it. The fine was considered by the European Data Protection Board, which mandated a reassessment and increase. WhatsApp disagreed with the fine, calling it “wholly disproportionate”.

The IAPPBird & Bird and Pinsent Masons have coverage of the fine.

  1. Notebooksbillinger.de  €10,400,000

The State Commissioner for Data Protection in Lower Saxony fined notebooksbilliger.de AG €10,400,000, issued in December 2020. The Commission found that the company has been using video surveillance to monitor its employees for at least two years without any legal justification. Areas recorded included workspaces, sales floors, warehouses and staff rooms.

Whilst the company argued the cameras has been installed to prevent theft it first should have tried to implement less serve means. Furthermore, the recordings were saved for 60 days which was much longer than deemed necessary.

“This is a serious case of workplace surveillance”, says the State Commissioner for Data Protection in Lower Saxony, Barbara Thiel. “Companies have to understand that such intensive video surveillance is a major violation of their employees’ rights”. While businesses often argue that video surveillance can be effectively used to deter criminals, this does not justify the permanent and unjustified interference with the personal rights of their employees. “If that were the case, companies would be able to extend their surveillance without limit. Employees do not have to sacrifice their personal rights just because their employer puts them under general suspicion”, explains Thiel. “Video surveillance is a particularly invasive encroachment on a person’s rights, because their entire behaviour can theoretically be observed and analysed. According to the case law of the Federal Labour Court, this can put staff under pressure to act as inconspicuously as possible to avoid being criticised or sanctioned for their behaviour”.

Data Privacy ManagerData GuidanceSimmons & Simmons and Luther have commentary.

  1. Austrian Post  €9,500,000

The Austrian Data Protection Authority issued a fine of €9,500,000 to the Austrian Post alleging that it had not enabled data protection enquiries via email.

In October 2019 the Post received a €18,000,000 fine for processing personal data on the alleged political affinity of affected data subjects. The fine was later annulled in a November 2020 court decision. The Post has announced it plans to appeal this second penalty. “The allegations made by the Authority mainly relate to the fact that, in addition to the contact opportunities made available by Austrian Post via mail, a web contact form and the company’s customer service centre, inquiries about personal data must also be made possible via e-mail. Austrian Post also intends to launch an appeal against this decision.”

See coverage from Data Guidance.

  1. Vodaphone Espana   €8,150,000

From April 2018 to September 2019, 191 complaints were received for similar cases concerning telephone calls and SMS messages to citizens who had opposed the processing of their data for advertising. The failure of Vodapone to avoid advertising actions to those citizens who had exercised their rights of opposition or erasure of their data justified a fine.

Coverage was broad with Compliance WeekData Guidance and Stephenson Harwood commenting.

United Kingdom Fines

UK fines- the ICO has issued 35 monetary penalty notices thus far in 2021. Below we take a look at a selection of the fines.

  1. Clearview AI  £17 million

The Information Commissioner’s Office (“ICO”) has issued a provisional view of the imposition of a £17m fine over Clearview AI..  The BBC cites that the firms’ database has over 10bn images. The ICO has issued a provisional notice to stop further processing of the personal data of people in the UK and to delete any such data following alleged serious breaches of the UK’s data protection laws.

In a joint investigation with the Australian Information Commissioner (“AIC”) the ICO concluded that the data, some scraped from the internet, was being processed, in the case of UK persons, unlawfully in some instances.

Clearview AI Inc’s services were being used on a free trial basis by some law enforcement agencies. This has been confirmed to no longer be the case.

The ICO’s preliminary view is that Clearview AI Inc appears to have failed to comply with UK data protection laws in several ways including by:

  • failing to process the information of people in the UK in a way they are likely to expect or that is fair;
  • failing to have a process in place to stop the data being retained indefinitely;
  • failing to have a lawful reason for collecting the information;
  • failing to meet the higher data protection standards required for biometric data (classed as ‘special category data’ under the GDPR and UK GDPR);
  • failing to inform people in the UK about what is happening to their data; and
  • asking for additional personal information, including photos, which may have acted as a disincentive to individuals who wish to object to their data being processed.

Information Commissioner Elizabeth Denham commented:

“I have significant concerns that personal data was processed in a way that nobody in the UK will have expected. It is therefore only right that the ICO alerts people to the scale of this potential breach and the proposed action we’re taking. UK data protection legislation does not stop the effective use of technology to fight crime, but to enjoy public trust and confidence in their products technology providers must ensure people’s legal protections are respected and complied with.

Clearview AI Inc’s services are no longer being offered in the UK. However, the evidence we’ve gathered and analysed suggests Clearview AI Inc were and may be continuing to process significant volumes of UK people’s information without their knowledge. We therefore want to assure the UK public that we are considering these alleged breaches and taking them very seriously.”

 The ICO press release can be found here and the AIC press release here.

The previous statement of the ICO on the conclusion of the joint investigation can be found here.

  1. Cabinet Office  £500,000

The Cabinet Office was fined £500,000 on 2 December 2021 for disclosing the postal addresses of the 2020 New Years honours recipients online. In finding that the Cabinet Office failed to put appropriate technical and organisation measures in place the ICO noted that the data was accessed 3,872 times.

The ICO received three complaints from affected individuals who raise personal safety concerns and 27 contacts from individuals citing similar concerns. Steve Eckersley, ICO Director of Investigations, said:

“When data breaches happen, they have real life consequences. In this case, more than 1,000 people were affected. At a time when they should have been celebrating and enjoying the announcement of their honour, they were faced with the distress of their personal details being exposed.

“The Cabinet Office’s complacency and failure to mitigate the risk of a data breach meant that hundreds of people were potentially exposed to the risk of identity fraud and threats to their personal safety.

 “The fine issued today sends a message to other organisations that looking after people’s information safely, as well as regularly checking that appropriate measures are in place, must be at the top of their agenda.”

The Guardian reports on the data breach as does Data Guidance.

  1. EB Associates Group Limited  £140,000

The ICO issued its largest fine to date to EB Associates Group Limited for instigating over 107,000 illegal cold calls to people about pensions. The practice has been banned since 2019.

Andy Curry, Head of ICO Investigations, said:

“Our priority is to protect people and we will always take robust action against companies operating illegally for their own financial gain.

“Cold calls about pensions were banned to protect people from scammers trying to cheat them out of their retirement plans.

“We encourage anyone who receives an unexpected call about their pension to hang up and then report it to us.”

The fine was covered by professional pensions.

  1. Mermaids  £25,000

It is unfortunate at times that some charities which do the most sensitive of work also hold the most sensitive data. It makes data protection compliance all the more critical. Unfortunately, the transgender rights charity Mermaids fell afoul of data protection laws in the creation of an email group that was not sufficiently annexed or encrypted to protect the data it contained.

The result was that the 780 email pages were identifiable online over a period of three years. This led to the personal information of 550 people to be searchable online. Furthermore. the personal data of 24 of those people revealed how they were coping and feeling. Finally, for a further 15 classified as special category data as mental and physical health and sexual orientation were exposed.

Steve Eckersley, Director of Investigations at the ICO said:

“The very nature of Mermaids’ work should have compelled the charity to impose stringent safeguards to protect the often-vulnerable people it works with. Its failure to do so subjected the very people it was trying to help to potential damage and distress and possible prejudice, harassment or abuse.

 “As an established charity, Mermaids should have known the importance of keeping personal data secure and, whilst we acknowledge the important work that charities undertake, they cannot be exempt from the law.”

This serves a warning call for charities who process sensitive personal data – under the GDPR and the framework of self-reporting you need to have appropriate technical measures in place. Failure to do so puts users’ data at risk and leaves them vulnerable. Mermaids’ penalty was imposed for the data being at risk for the period of 25 May 2018 to 14 June 2019.

It is notable that Mermaid’s data protection policies and procedures were not updated to reflect GDPR standards. Post the implementation of the Data Protection Act 2018 data protection practices are taking increasing importance and a robust review with practical changes to data harvesting, management, retention and rights handling is now a necessity.

DAC Beachcroft comments as does Slaughter and Maythe Independent and EM Law.

  1. HIV Scotland  £10,000

In a cautionary tale for those using bulk email practices HIV Scotland was fined £10,000 for sending an email to 105 people which included patient advocates representing people living in Scotland with HIV. All the email addresses were visible to all recipients, and 65 of the addresses identified people by name.

From the personal data disclosed, an assumption could be made about individuals’ HIV status or risk. The ICO’s investigation found inadequate staff training, incorrect methods of sending bulk emails by blind carbon copy and an inadequate data protection policy.

Ken Macdonald, Head of ICO Regions, said:

“All personal data is important but the very nature of HIV Scotland’s work should have compelled it to take particular care. This avoidable error caused distress to the very people the charity seeks to help.

 “I would encourage all organisations to revisit their bulk email policies to ensure they have robust procedures in place.”

The BBCKeller Lenker and the Times have coverage.  

Suneet Sharma is a junior legal professional with a particular interest and experience in media, information and privacy law.  He is the editor of The Privacy Perspective blog.

Quotes from caselaw 6: HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810- Megan Markle successful in defending appeal by Mail on Sunday

An appeal against the finding for summary judgment for her misuse of private information and copyright claim.

The appellant was granted permission appealed the elements of the case on seven grounds:

i) The new evidence issue: Whether the new evidence provided by each of the
parties should be admitted.

ii) The nature of the attack issue: Whether the judge mistakenly failed to
recognise the significance and importance of the People Article’s attack on Mr
Markle.

iii) The reasonable expectation of privacy issue: Whether the judge adopted a
flawed analysis of the factors undermining the Duchess’s alleged reasonable
expectation of privacy.

iv) The appropriate test issue: Whether the judge wrongly stated the test, by
suggesting that the defendant had to justify an interference with the claimant’s
right of privacy, when the proper approach was to balance the competing article 8 and 10 rights.

v) The right of reply issue: Whether the judge wrongly applied a strict test of
necessity and proportionality to Mr Markle’s right of reply to the People Article.

vi) The public interest/article 10 copyright issue: whether the judge failed
properly to evaluate the interference with article 10, saying that it would be a
rare case in which freedom of expression would outweigh copyright.


vii) The fair dealing copyright issue: whether the judge wrongly relied on his
privacy analysis to reject the fair dealing defence to breach of copyright, bearing
in mind the limited scope of the copyright in the Letter and the wide scope of
the concept of reporting current events.

The Sir Jeoffery Vos decided against the defendant on all grounds dismissing the appeal, in a unanimous judgment, stating summarily:

Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.

p.106

Quotes from caselaw 5: Lloyd v Google LLC [2021] UKSC 50 – no one size fits all claim available in data protection “Safari Workaround” class action

In one of the most significant privacy law judgments of the year the UK Supreme Court considered whether a class action for breach of s4(4) Data Protection Act 1998 (“DPA”) could be brought against Google of its obligations as a data controller for its application of the “Safari Workaround”. The claim for compensation was made under s.13 DPA 1998.

The amount claimed per person advanced in the letter of claim was £750. Collectively, with the number of people impacted by the processing, the potential liability of Google was estimated to exceed £3bn.

“The claim alleges that, for several months in late 2011 and early 2012,
Google secretly tracked the internet activity of millions of Apple iPhone users and used the data collected in this way for commercial purposes without the users’ knowledge or consent.”

Lord Leggatt at p.1

The class action claim was brought under rule 19.6 of the Civil Procedure Rules.

Lord Leggatt handed down the unanimous judgement in favour of the appellant Google LLC:

“the claim has no real prospect of
success. That in turn is because, in the way the claim has been framed in order to try to bring it as a representative action, the claimant seeks damages under section 13 of the DPA 1998 for each individual member of the represented class without attempting to show that any wrongful use was made by Google of personal data relating to that
individual or that the individual suffered any material damage or distress as a result of a breach of the requirements of the Act by Google.”

At p.159

It should be noted that the claim was brought under the Data Protection Act 1998 and not under the GDPR.

See the full judgement here. The Panopticon Blog has an excellent summary.

ICO issues provisional view to fine Clearview AI Inc over £17 million

The Information Commissioner’s Office (“ICO”) has issued a provisional view of the imposition of a £17m fine over Clearview AI.

The BBC cites that the firms’ database has over 10bn images. The ICO has issued a provisional notice to stop further processing of the personal data of people in the UK and to delete any such data following alleged serious breaches of the UK’s data protection laws.

In a joint investigation with the Australian Information Commissioner (“AIC”) the ICO concluded that the data, some scraped from the internet, was being processed, in the case of UK persons, unlawfully in some instances.

Clearview AI Inc’s services were being used on a free trial basis by some law enforcement agencies. This has been confirmed to no longer be the case.

The ICO’s preliminary view is that Clearview AI Inc appears to have failed to comply with UK data protection laws in several ways including by:

  • failing to process the information of people in the UK in a way they are likely to expect or that is fair;
  • failing to have a process in place to stop the data being retained indefinitely;
  • failing to have a lawful reason for collecting the information;
  • failing to meet the higher data protection standards required for biometric data (classed as ‘special category data’ under the GDPR and UK GDPR);
  • failing to inform people in the UK about what is happening to their data; and
  • asking for additional personal information, including photos, which may have acted as a disincentive to individuals who wish to object to their data being processed.

Information Comissioner Elizabeth Denham commented:

“I have significant concerns that personal data was processed in a way that nobody in the UK will have expected. It is therefore only right that the ICO alerts people to the scale of this potential breach and the proposed action we’re taking. UK data protection legislation does not stop the effective use of technology to fight crime, but to enjoy public trust and confidence in their products technology providers must ensure people’s legal protections are respected and complied with.

Clearview AI Inc’s services are no longer being offered in the UK. However, the evidence we’ve gathered and analysed suggests Clearview AI Inc were and may be continuing to process significant volumes of UK people’s information without their knowledge. We therefore want to assure the UK public that we are considering these alleged breaches and taking them very seriously.”

This is one of the largest fines issued under the GDPR to date. Clearview now has the opportunity to respond, both in the UK and Australia (the AIC has found breaches of Australian privacy laws).

It’s unsurprising that its database, said to have included images scraped from social media, has drawn the attention of regulators. Facial recognition services have been at the forefront of recent data analytics scrutiny and data protection enforceability.

The ICO press release can be found here and the AIC press release here.

The previous statement of the ICO on the conclusion of the joint investigation can be found here.

Quotes from caselaw 4: PJS v News Group Newspapers Limited [2016] UKSC 26 – privacy rights are broader than just confidentiality

It is a rare case where an application for a interlocutory injunction succeeds despite an article on the subject already being published. Such was the case in PJS, one of the most significant English law cases concerning privacy law to date.

The leading judgment was handed down by Lord Mance. It concerned the grant of an injunction to keep details of an extra marital affair between a claimant of great renown being published by the press.

Lord Mance observes the fact that privacy is a zonal right justifying protection, differing in character from the right of confidentiality. The esteemed judge highlights previous cases at paragraphs 58 and 59 of the judgment, endorsing the well entrenched approach from the Court of Appeal.

He characterises privacy, rightly, as extending beyond the bounds of confidentiality. In doing so ones private life becomes a space that should remain, in certain circumstances, free from intrusion.

However, claims based on respect for privacy and family life do not depend on confidentiality (or secrecy) alone... “unwanted access to private information and unwanted access to [or intrusion into] one’s … personal space”

Lord Mance at p.58-59

Concluding Lord Mance opined on the capacity of the internet to change perceptions of privacy. He acknowledged that the courts need to remain cognizant of this. In doing so he affirmed the findings of previous caselaw, gave credence to commentators and noted the implications of tweeting and blogging:

 I also accept that, as many commentators have said, that the internet and other electronic developments are likely to change our perceptions of privacy as well as other matters – and may already be doing so. The courts must of course be ready to consider changing their approach when it is clear that that approach has become unrealistic in practical terms or out of touch with the standards of contemporary society. However, we should not change our approach before it is reasonably clear that things have relevantly changed in a significant and long-term way. In that connection, while internet access became freely available in this country only relatively recently, almost all the cases listed at the end of para 59 above were decided since that happened, and many of those cases were decided after blogging and tweeting had become common.

Lord Mance at p.70

TPP has commented further on the PJS case here.

Citation: INFORRM Blog, ZXC v Bloomberg LP: Privacy and Reputational Harm – Jeevan Hariharan

The INFORRM Blog has an excellent post on the inter-related nature of privacy and reputational harms.

Whether an individual has a reasonable expectation of privacy that outweighs the public interest in cases where there has been an investigation, but no charge, by the police is an imminent case before the Supreme Court in the case of ZXC v Bloomberg LP.

The case is before the UK Supreme Court on 30 November and 1 December next week and was cited by Hariharan in his analysis of the proximity between privacy and reputational harms.

The Court of Appeal judgment can be found here. The Court found that there could be a reasonable expectation of privacy in the fact of a police investigation. This builds upon notable caselaw such as the Cliff Richard case.

Citation: BBC: WhatsApp changes privacy policy after Irish data protection authority issues £190m fine

The BBC has an insightful article on WhatsApp’s behaviour after the sanctions imposed on it by the Irish Data Protection Authority fined it £190m in September 2021.

According to the BBC, the tweaks are designed to “add additional detail around [WhatsApps] existing practices”, and will only appear in the European version of the privacy policy, which is already different from the version that applies in the rest of the world.

“There are no changes to our processes or contractual agreements with users, and users will not be required to agree to anything or to take any action in order to continue using WhatsApp,” the company said, announcing the change.

WhatsApp is appealing the fine imposed against it by the Irish Data Protection Commissioner.

TPP number 30 on Feedspot – Top 35 Privacy Websites and Blogs

We are delighted to be ranked 30 out of Feedspots top 35 blogs. TPP was ranked alongside law firms and authoritative blogs on privacy law.

According to Feedspot sites are ranked “by traffic rank, social media followers, domain authority & freshness.” The full list can be found here and is a must read for anyone interested in privacy law matters.

TPP re-published by the The Student Lawyer: Use of facial recognition software in school lunch queues in North Ayrshire

TPP is pleased to announce that the article that appeared on this site analysing use of facial recognition software in schools in North Ayrshire has been republished by the Student Lawyer.

The Student Lawyer is a go-to legal news and blogging site for law students. You can find the article here.