5 ms·

Why would a government impose anything other than the maximum?

dragonwriter 8y ago
> Why would a government impose anything other than the maximum? Because it's bound to apply a bunch of other rules in setting penalties by the same regulation that set the maximum cited. Saying that every offense will get the maximum is saying that the government will ignore the regulation, in which case you can just as justifiably say that any behavior, even if it isn't a violation of the rules, will get a fine of €1.337 quintillion, or 1,000% of global combined GDP, whichever is greater. Heck, even ignoring the casd-by-case factors that must be considered, the 4% or €20 million maximum is much greater than the maximum for many violations, there are only certain GDPR violations that have that maximum.
marvin 8y ago
Because the regulation is meant to enforce lawful behavior, not make the government richer. If they break out the maximum penalty for a minor violation, it will obviously stifle business and cause economic harm to the EU. But they do need a credible threat to really punish wilful disregard of the law, for companies that profit from breaking the rules. We see how well it works when the fine costs less than the profits from breaking the rules. The EU is making sure that this will not be the case for the GDPR.
- ars 8y ago
  Is what you say actually written into the law, or is it left up to the discretion of the enforcer? Because I'm sure EU companies will be given lots of leeway, but non EU companies will not, and no one wants to be the example.
  - stordoff 8y ago
    Fines must be "effective, proportionate and dissuasive", and there are various factors that the authorities must take into consideration. If you feel they _haven't_ taking the relevant factors into account, you can take it to the courts (especially if there is a history of fining non-EU companies more, as that would suggest they are taking irrelevant factors into consideration. https://gdpr-info.eu/art-83-gdpr/ https://gdpr-info.eu/art-83-gdpr/
    - ars 8y ago
      Um, those three words "effective, proportionate and dissuasive" together mean "as high as possible". So yah, people are right to block the EU first, and figure out the details later.
      - orf 8y ago
        > Um, those three words "effective, proportionate and dissuasive" together mean "as high as possible". No they absolutely do not.
        ars 8y ago
        Really? "effective" = large amount, so company won't do it again, "proportionate" = relative to revenue, "dissuasive" = make them an example so no one else will dare. I bet you are going to tell me proportionate somehow makes it all better, but for companies that make money this way, the amount of money they make this way in proportion to their income is basically all of it. So you can bet regulators will go for the full amount. No company in their right mind is going to rely on the mercy of an EU court toward a non-EU company.
        Tomte 8y ago
        Horseshit. Proportionate means „proportionate to the infraction“. That is simply not up for debate or „internet troll‘s opinion“, that‘s established law.
        stordoff 8y ago
        > "effective" = large amount, so company won't do it again Generally true, but it should be read with proportionate as meaning as large as necessary to be effective -- if a warning is sufficient to ensure compliance, then the effective clause suggests a fine is NOT warranted. > "proportionate" = relative to revenue _Absolutely_ not - proportionate to the _infringement_. There is no other reading that makes sense here. > "dissuasive" = make them an example so no one else will dare. Dissuasive also encompasses encouraging companies to cooperate with regulators and make a best effort to comply. If they are going to get the maximum fine for a minor breach, even if they made a full effort to comply and merely overlooked something, they are _not_ dissuaded from ignoring the GDPR in its entirety. > So you can bet regulators will go for the full amount. Certainly not. Going for the full amount, regardless of the circumstances and ignoring the factors they MUST consider, is going to result in the fines being overturned by the courts, which undermines their position, doesn't fulfill the purpose of the fine (if the company successfully challenges it), and doesn't fulfill the aims of the GDPR. Ignoring the law to go for the maximum fine would be a terrible decision for a regulator to make, and you can look at the history of enforcement of the DPD to see that regulators _don't_ generally go for the maximum fine.
hobbe80 8y ago
Why doesn’t petty theft carry the death penalty? Penalties for any crime must be, in a democracy, be reasonable to the general population (which of course contains a lot of people who both are data subjects and data controllers via owning smaller and larger businesses) - otherwise the legislative body will be voted out, laws changed, etc. Equilibrium. Yes, EU laws might have more red tape around them, but we still vote for our representatives.
Tomte 8y ago
Because having every single fine rescinded by the courts looks bad and brings you exactly no money.
oldcynic 8y ago
Article 49 of the EU Charter of Fundamental Rights. All penalties under EU law must be proportionate. As a result there is already considerable case law, from multiple individual laws and countries, at the CJEU to define the extent of proportionate.

> Why would a government impose anything other than the maximum? Because it's bound to apply a bunch of other rules in setting penalties by the same regulation that set the maximum cited. Saying that every offense will get the maximum is saying that the government will ignore the regulation, in which case you can just as justifiably say that any behavior, even if it isn't a violation of the rules, will get a fine of €1.337 quintillion, or 1,000% of global combined GDP, whichever is greater. Heck, even ignoring the casd-by-case factors that must be considered, the 4% or €20 million maximum is much greater than the maximum for many violations, there are only certain GDPR violations that have that maximum.

marvin 8y ago

Because the regulation is meant to enforce lawful behavior, not make the government richer. If they break out the maximum penalty for a minor violation, it will obviously stifle business and cause economic harm to the EU. But they do need a credible threat to really punish wilful disregard of the law, for companies that profit from breaking the rules. We see how well it works when the fine costs less than the profits from breaking the rules. The EU is making sure that this will not be the case for the GDPR.

ars 8y ago
Is what you say actually written into the law, or is it left up to the discretion of the enforcer? Because I'm sure EU companies will be given lots of leeway, but non EU companies will not, and no one wants to be the example.
- stordoff 8y ago
  Fines must be "effective, proportionate and dissuasive", and there are various factors that the authorities must take into consideration. If you feel they _haven't_ taking the relevant factors into account, you can take it to the courts (especially if there is a history of fining non-EU companies more, as that would suggest they are taking irrelevant factors into consideration. https://gdpr-info.eu/art-83-gdpr/ https://gdpr-info.eu/art-83-gdpr/
  - ars 8y ago
    Um, those three words "effective, proportionate and dissuasive" together mean "as high as possible". So yah, people are right to block the EU first, and figure out the details later.
    - orf 8y ago
      > Um, those three words "effective, proportionate and dissuasive" together mean "as high as possible". No they absolutely do not.
      - ars 8y ago
        Really? "effective" = large amount, so company won't do it again, "proportionate" = relative to revenue, "dissuasive" = make them an example so no one else will dare. I bet you are going to tell me proportionate somehow makes it all better, but for companies that make money this way, the amount of money they make this way in proportion to their income is basically all of it. So you can bet regulators will go for the full amount. No company in their right mind is going to rely on the mercy of an EU court toward a non-EU company.
        Tomte 8y ago
        Horseshit. Proportionate means „proportionate to the infraction“. That is simply not up for debate or „internet troll‘s opinion“, that‘s established law.
        stordoff 8y ago
        > "effective" = large amount, so company won't do it again Generally true, but it should be read with proportionate as meaning as large as necessary to be effective -- if a warning is sufficient to ensure compliance, then the effective clause suggests a fine is NOT warranted. > "proportionate" = relative to revenue _Absolutely_ not - proportionate to the _infringement_. There is no other reading that makes sense here. > "dissuasive" = make them an example so no one else will dare. Dissuasive also encompasses encouraging companies to cooperate with regulators and make a best effort to comply. If they are going to get the maximum fine for a minor breach, even if they made a full effort to comply and merely overlooked something, they are _not_ dissuaded from ignoring the GDPR in its entirety. > So you can bet regulators will go for the full amount. Certainly not. Going for the full amount, regardless of the circumstances and ignoring the factors they MUST consider, is going to result in the fines being overturned by the courts, which undermines their position, doesn't fulfill the purpose of the fine (if the company successfully challenges it), and doesn't fulfill the aims of the GDPR. Ignoring the law to go for the maximum fine would be a terrible decision for a regulator to make, and you can look at the history of enforcement of the DPD to see that regulators _don't_ generally go for the maximum fine.

hobbe80 8y ago

Why doesn’t petty theft carry the death penalty? Penalties for any crime must be, in a democracy, be reasonable to the general population (which of course contains a lot of people who both are data subjects and data controllers via owning smaller and larger businesses) - otherwise the legislative body will be voted out, laws changed, etc. Equilibrium. Yes, EU laws might have more red tape around them, but we still vote for our representatives.

Tomte 8y ago

Because having every single fine rescinded by the courts looks bad and brings you exactly no money.

oldcynic 8y ago

Article 49 of the EU Charter of Fundamental Rights. All penalties under EU law must be proportionate. As a result there is already considerable case law, from multiple individual laws and countries, at the CJEU to define the extent of proportionate.