On the 16th of May 2022, The European Data Protection Board (“EDPB”) has adopted, in its latest plenary session held on 12 May 2022, two new guidelines, one on the calculation of fines under the EU GDPR and the second guideline on the use of facial recognition technology in law enforcement. These two sets of guidelines are open for public consultation until 27 June 2022. They are summarised in turn below.
Guidelines on the calculation of fines
These guidelines aim to harmonise the methodology used by data protection authorities (DPAs). The guidelines also include harmonised ‘starting points’ for calculating a fine, taking into consideration three elements:
- the categorisation of infringements by nature;
- the seriousness of the infringement; and
- the turnover of a business.
The guidelines currently propose a five-step calculation method:
- DPAs must first establish if the case concerns one or more circumstances of sanctionable conduct and if these have led to infringements. The purpose is to clarify if all (or some) of the infringements are subject to fines.
- DPAs must rely on a starting point for the calculation of the fine for which there is a harmonised method provided by the EDPB.
- DPAs must consider any aggravating or mitigating factors that can alter the amount of the fine, for which the EDPB provides a consistent interpretation.
- DPAs to determine the legal maximums of fines (Article 83 (4)-(6) GDPR) and to ensure that these amounts are not exceeded.
- DPAs need to analyse whether the calculated final amount meets the requirements of effectiveness, dissuasiveness, and proportionality or whether adjustments to the amount are necessary.
Guidelines on the use of facial recognition technology in the area of law enforcement
These guidelines provide guidance to EU and national law makers, and to law enforcement authorities, on implementing and using facial recognition technology systems.
The guidelines note that the facial recognition tools should only be used in compliance with the Law Enforcement Directive (“LED”) and used only in a necessary and proportionate manner, as set out in the Charter of Fundamental Rights.
A ban on the use of facial recognition technology in certain cases is also referred to, such as in cases of:
- remote biometric identification of individuals in publicly accessible spaces;
- facial recognition systems categorising individuals based on their biometrics into groups according to ethnicity, gender, political or sexual orientation or other grounds for discrimination;
- facial recognition or similar technologies to infer emotions of a natural person;
- processing of personal data in a law enforcement context that would rely on databases populated by collection of personal data on a mass-scale and in an indiscriminate way i.e., by “scraping” photographs and facial pictures accessible online.
Both sets of guidelines will be submitted for public consultation for a period of 6 weeks, following which, a final version of the guidelines taking into consideration the stakeholder feedback received will be adopted. The final version will include a reference table with a range of starting points for the calculation of a fine, depending on the severity of the infringement and the turnover of the organisation.
Please contact Jose Saras if you have any questions regarding the above.
The material contained in this article is only for general review of the topics covered and does not constitute any legal advice. No legal or business decision should be based on its content.