When data protection authorities (DPAs) take the stage at a privacy conference, attendees tend to listen closely. That was the case as Ireland Data Protection Commissioner Billy Hawkes and Poland Inspector General for the Protection of Personal Data, GIODO, Wojciech Wiewiórowski discussed the current state and future of data protection enforcement at the IAPP Europe Data Protection Intensive.
One main theme throughout: What constitutes the most effective means of enforcement? The panelists asserted, perhaps surprisingly, that fines are not the ultimate vanguard of privacy protection, regardless of what side of the Atlantic you’re on.
“What does it mean, an enforcement action?” queried Wiewiórowski. Enforcement actions take many forms beyond fining, he pointed out, adding, “you can draw the wrong conclusions from the stats.”
Hawkes put it this way: “My job is to make sure organizations in my jurisdiction are complying with the law.”
He said punishment isn’t the ultimate goal; it’s compliance. In one example of the power of enforcement, Hawkes noted he instructed a data processor to stop all processing during an investigation by his office. “They didn’t earn money while they were shut down,” he said, “and that’s more powerful than fines. If you have the option to ensure compliance, that’s more powerful.”
That is not to say that fines carry no utility.
“The power to impose fines is yet another tool, but I hope to use it sparingly,” Hawkes said, adding working with a business over time is very effective. Allowing the regulator to conduct audits, like the U.S. Federal Trade Commission, can be very effective, he said.
“Imposing fines helps the DPAs,” said Wiewiórowski. It certainly gets media and consumer attention and can affect a company’s brand.
Field Fisher Waterhouse Partner Stewart Room, CIPP/E, who provided statistical analysis of recent enforcement trends, said he believes the future of compliance does not reside in fines. He conceded that it draws public attention but opined the really good work uses undertakings and consent decrees. Such enforcement action is not predicated on a one-time fine but instead is assessed over time—essentially making true data protection reform more durable. He also said fines often come down on a company after employees have left it, which becomes a “legacy problem with people who are no longer at the company.”
Hawkes said his office takes a sectoral approach in guiding private- and public-sector organizations. This way, he said, his office can provide better guidance across sectors.
With regard to the direction of the proposed EU General Data Protection Regulation, the panelists answered in varying degree.
Hawkes said he hopes the reforms will be “sufficiently flexible to provide us with a toolbox” with which to regulate data protection without being overly prescriptive. He added, “I hope it doesn’t say, ‘thou shalt.’”
Room pulled for fairness to companies that are transparent. He said it’s counterproductive when an organization is transparent but gets hit by a huge enforcement action.
Wiewiórowski disagreed. He said granting amnesty to companies that are transparent could translate as, “We did something wrong, but it’s not our fault.”
Wiewiórowski said “flexibility is important,” but when talking flexibility, “I would like my way of flexibility, not the CNIL’s or Ireland’s version of flexibility.”