GDPR Enforcement Loosens Amid Pandemic

As resources are diverted to fighting the ongoing coronavirus pandemic, Europe's enthusiasm for protecting consumer rights under the General Data Protection Regulation (GDPR) might be taking a pause, but it's certainly not rewinding, experts say.

A month after the UK's data-regulating Information Commissioner's Office (ICO) issued statements indicating it would be taking a softer touch in regard to enforcing the regulation that the region uses to govern how businesses manage their customers' data, the EU has given some organizations more breathing room to remedy violations but will continue to enforce the sweeping, privacy-protective law passed in 2016.

Two GDPR fines against international organizations first proposed in 2019 have been delayed since the coronavirus struck. At the end of March, the ICO gave British Airways and Marriott extra time to contest fines of $223 million and $124 million, respectively, or pay up. The ICO also has delayed its investigation into alleged widespread abuses in the ad-tech industry.

Nevertheless, consumers shouldn't think regulators are planning to abandon GDPR in the face of COVID-19, says Annabel Gillham, a London-based privacy expert at Morrison and Foerster. 

"I don't think we can read too much into the pausing," she said. "It's pure resourcing issues, rather than moving away from protecting consumers."

Consumers most likely encounter GDPR in the form of pop-ups asking for their consent to collect data when they visit a site based in Europe or from a European Internet address, although the law goes much deeper than that. GDPR expands the definition of personal information, limits data use and retention, mandates data minimization, and requires faster data-breach notifications. While many expected GDPR to lead to "mega-fines" to punish organizations for data breaches and other failures to protect European consumer data after it first went into effect in 2018, punitive action thus far has depended on which country regulators are based.

Along with the UK, 14 European countries have issued fines based on GDPR, but those fines have been "inconsistent," according to the February Beazley breach insights report.

"This level of inconsistency makes it difficult to predict how an investigation will play out, and highlights the importance of carrying out and documenting a thorough response to a data privacy incident, just in case it attracts the regulator's attention," the report states.

Even if GDPR enforcement returns to pre-coronavirus levels, it may not have the impact many believed it would have because compliance wasn't great to begin with. Just before lockdowns became de rigueur, a February study found that "dark patterns and implied consent" are ubiquitous in countries relying on GDPR to manage consumer data. 

GDPR's protections work only if regulators make violators "feel it," says Omer Tene, chief knowledge officer for the International Association of Privacy Professionals. 

"If people are suffering anyway, maybe a smaller fine will suffice," he said. "But I don't think that regulators should or will stop enforcing the law. Just because there's a pandemic doesn't mean you can speed on the highway or cheat on your income taxes."  

The uneven GDPR enforcement we've seen so far will continue as countries manage the coronavirus crisis while simultaneously working to establish their GDPR interpretations, says Kate Brimstead, head of data privacy and cybersecurity in the UK for law firm Bryan Cave Leighton Paisner. She says she expects some of that inconsistency to manifest as regulators give organizations more flexibility to handle data privacy incidents. 

"From that commercial standpoint, it's reassuring up to a point that, at the moment, there's some slack in the way that regulators will respond to things," she says, though noting regulators lack the power to suspend laws — even if they wanted to. "If you have a data breach, you still have 72 hours to report it. But if there's a genuine COVID-19 reason something is delayed, it's quite a reassuring thing on top of all the things businesses are facing right now."

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