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> two independent judges each assessing a fine As I understand it the penalty is assessed and levied by the regulator. Just like DPA penalties where the number

> two independent judges each assessing a fine As I understand it the penalty is assessed and levied by the regulator. Just like DPA penalties where the number of people receiving any fine at all has been minuscule. The proportionality of instances where fines have been given seems good. I think most EU citizens would feel too few, and too low fines have been the norm. > That level of unpredictability doesn't seem like law to me That is how most UK and EU law has worked for, well, forever. Most offences have a maximum penalty yet it is the US that regularly makes headlines for extreme penalties or length of incarceration. Plenty of people get small fines in the hundreds, or just a caution, or their business gets a letter for offences that have fines running far into the thousands. Talking of extraterritoriality, doesn't that also apply, along with the burden to 200 nations you criticise, to the US DMCA for sites with user content?

tripletao 8y ago
I said "judges" because I understand them to be the final authority, since the regulator's number can be appealed. If that's wrong, then substitute whatever party does make the final decision. My question isn't whether the fines are frequent or high enough. It's whether they're predictable enough--whether the law is described in enough detail that two people interpreting it independently would reach something close to the same number given the same facts. I don't think it is. (Do you?) The usual answer is "but don't worry, the people interpreting it make good decisions". I think that's probably true; but when the maximum penalty is indeed financial annihilation, that doesn't seem too comforting. The USA has indeed pushed the extraterritorial limits. I think that's bad, and I don't see how it makes the EU's reach any better. And to emphasize, my concern isn't the burden to ~200 nations--it's the burden from ~200 nations. Should the UK be able to enforce that super-injunction? If not, why not? Iran, a prohibition on the Satanic Diaries?
- oldcynic 8y ago
  > It's whether they're predictable enough I'm used to the law going easy for a first offence, or an accidental breach. Occasionally we have separated offences (murder and manslaughter for example), but most of the time there's just a maximum that is reserved for the most wilful, or repeat or extreme cases. No one has ever been bankrupted by our unlimited fine for cannabis possession (most get a caution or trivial fine). Apart from anything else means are assessed before any fine is levied. If you're on minimum wage a £100 fine is going to hurt rather more than to a millionaire. So means are assessed first to try and remain proportionate. So how is it done in the US? I only have what I've gleaned from the media. Does the judge or regulator enforcing really have no discretion of penalty or always seek the maximum? I find it very difficult to believe that the entire range of penalties and when they apply are spelt out in every law and judges or regulators have no discretion or common sense. Movie "experience" seems to indicate a lot more horse trading goes on. Do our legal systems diverge so much that US citizens completely distrust theirs to do anything but bankrupt them for minutiae whilst we remain certain they can and will be proportionate? > ...extraterritorial limits. I think that's bad, and I don't see how it makes the EU's reach any better I'm somewhat uncomfortable with some of the global precedents myself. On the other hand I'm not sure how it is avoided in a world that is so globalised and so many internet services have essentially ignored EU privacy and data protection. So what's the alternative? We're not enthusiastic to adopt the US model of privacy and many internet services aren't even paying lip service to our (too) limited protections. How else to fix it? EU wide Facebook blocks seem like a fine way to start a trade war!
  - tripletao 8y ago
    > Do our legal systems diverge so much that US citizens completely distrust theirs to do anything but bankrupt them for minutiae whilst we remain certain they can and will be proportionate? I think...maybe? It's a continuum, and a legal system with zero judicial discretion would either require impossibly detailed law or yield obviously unjust results. I don't think the model in the USA is strictly adversarial--like, it's not entirely that the regulators are supposed to punish you to the maximum extent of the law as written, and if that's unjust then blame the legislators. It's closer, though. This has advantages (less opportunity for selective enforcement) and disadvantages (increased complexity of law, greater opportunity for loopholes). > I'm somewhat uncomfortable with some of the global precedents myself. On the other hand I'm not sure how it is avoided in a world that is so globalised and so many internet services have essentially ignored EU privacy and data protection. So what's the alternative? Any large player has operations within the EU, making the extraterritorial reach unnecessary. For smaller players, I see lots of unexplored opportunity to regulate indirectly through ad networks, payment processors, etc.
- stordoff 8y ago
  > I said "judges" because I understand them to be the final authority, since the regulator's number can be appealed. If that's wrong, then substitute whatever party does make the final decision. The precise mechanism isn't defined in the GDPR, but I suspect it'll operate similar to judicial review - a court can determine that a reasonable decision was made by the authority, and thus allow the fine as is, or they can determine the authority acted unreasonably or did not take into account the proper factors, and thus quash the decision and order it to be remade. I'd be somewhat surprised if the courts were directly setting fines.
  - tripletao 8y ago
    That's what I'd understood, and I'd then still consider the court's judgment to be what matters--if I pick the number, but you can tell me to pick again until you're happy, then the power to pick the number lies with you. I guess "impose" would have been better than "assess". Aside: What's with all the downvotes? Your comment seems fine to me, as do many others in this thread. It seems like any discussion of the mechanics of enforcement gets a nasty response here, as if the only people who should care about that are criminals. The GDPR might be the perfect legislation with which to erode civil liberties, since the people who would normally jump on such arguments will be on your side... Or is there another reason?

tripletao 8y ago

I said "judges" because I understand them to be the final authority, since the regulator's number can be appealed. If that's wrong, then substitute whatever party does make the final decision. My question isn't whether the fines are frequent or high enough. It's whether they're predictable enough--whether the law is described in enough detail that two people interpreting it independently would reach something close to the same number given the same facts. I don't think it is. (Do you?) The usual answer is "but don't worry, the people interpreting it make good decisions". I think that's probably true; but when the maximum penalty is indeed financial annihilation, that doesn't seem too comforting. The USA has indeed pushed the extraterritorial limits. I think that's bad, and I don't see how it makes the EU's reach any better. And to emphasize, my concern isn't the burden to ~200 nations--it's the burden from ~200 nations. Should the UK be able to enforce that super-injunction? If not, why not? Iran, a prohibition on the Satanic Diaries?

oldcynic 8y ago
> It's whether they're predictable enough I'm used to the law going easy for a first offence, or an accidental breach. Occasionally we have separated offences (murder and manslaughter for example), but most of the time there's just a maximum that is reserved for the most wilful, or repeat or extreme cases. No one has ever been bankrupted by our unlimited fine for cannabis possession (most get a caution or trivial fine). Apart from anything else means are assessed before any fine is levied. If you're on minimum wage a £100 fine is going to hurt rather more than to a millionaire. So means are assessed first to try and remain proportionate. So how is it done in the US? I only have what I've gleaned from the media. Does the judge or regulator enforcing really have no discretion of penalty or always seek the maximum? I find it very difficult to believe that the entire range of penalties and when they apply are spelt out in every law and judges or regulators have no discretion or common sense. Movie "experience" seems to indicate a lot more horse trading goes on. Do our legal systems diverge so much that US citizens completely distrust theirs to do anything but bankrupt them for minutiae whilst we remain certain they can and will be proportionate? > ...extraterritorial limits. I think that's bad, and I don't see how it makes the EU's reach any better I'm somewhat uncomfortable with some of the global precedents myself. On the other hand I'm not sure how it is avoided in a world that is so globalised and so many internet services have essentially ignored EU privacy and data protection. So what's the alternative? We're not enthusiastic to adopt the US model of privacy and many internet services aren't even paying lip service to our (too) limited protections. How else to fix it? EU wide Facebook blocks seem like a fine way to start a trade war!
- tripletao 8y ago
  > Do our legal systems diverge so much that US citizens completely distrust theirs to do anything but bankrupt them for minutiae whilst we remain certain they can and will be proportionate? I think...maybe? It's a continuum, and a legal system with zero judicial discretion would either require impossibly detailed law or yield obviously unjust results. I don't think the model in the USA is strictly adversarial--like, it's not entirely that the regulators are supposed to punish you to the maximum extent of the law as written, and if that's unjust then blame the legislators. It's closer, though. This has advantages (less opportunity for selective enforcement) and disadvantages (increased complexity of law, greater opportunity for loopholes). > I'm somewhat uncomfortable with some of the global precedents myself. On the other hand I'm not sure how it is avoided in a world that is so globalised and so many internet services have essentially ignored EU privacy and data protection. So what's the alternative? Any large player has operations within the EU, making the extraterritorial reach unnecessary. For smaller players, I see lots of unexplored opportunity to regulate indirectly through ad networks, payment processors, etc.
stordoff 8y ago
> I said "judges" because I understand them to be the final authority, since the regulator's number can be appealed. If that's wrong, then substitute whatever party does make the final decision. The precise mechanism isn't defined in the GDPR, but I suspect it'll operate similar to judicial review - a court can determine that a reasonable decision was made by the authority, and thus allow the fine as is, or they can determine the authority acted unreasonably or did not take into account the proper factors, and thus quash the decision and order it to be remade. I'd be somewhat surprised if the courts were directly setting fines.
- tripletao 8y ago
  That's what I'd understood, and I'd then still consider the court's judgment to be what matters--if I pick the number, but you can tell me to pick again until you're happy, then the power to pick the number lies with you. I guess "impose" would have been better than "assess". Aside: What's with all the downvotes? Your comment seems fine to me, as do many others in this thread. It seems like any discussion of the mechanics of enforcement gets a nasty response here, as if the only people who should care about that are criminals. The GDPR might be the perfect legislation with which to erode civil liberties, since the people who would normally jump on such arguments will be on your side... Or is there another reason?