Even though the bank itself came forward and reported on its challenges in complying with GDPR regulation, the Danish Data Protection Authority has imposed a historically large fine on the bank.
The decision comes after the Danish Data Protection Authority ex officio opened in November 2020 after the bank itself came forward with that it had identified issues with deleting personal data, for which there was not necessarily a commercial justification for continuing to process.
The bank itself has stated that it was already aware of the deleting and retention of data in October 2016. The bank therefore began a major compliance operation before the cut-off date of 25 May 2018 of the entry into force of the GDPR.
The Data Protection Authority's investigation found that the bank - in more than 400 systems - was unable to document, that policies were in place for the deletion and storing of personal data, or that personal data was deleted manually. The systems in question processes personal data of several million people.
The bank itself has stated that a working group of 20 people put a total of 15,000 hours into the effort to map all its processes up to the year when the GDPR came into force. The bank itself attributes its problem with storing and deleting personal data to a complex IT landscape with multiple systems, of both central and local character.
Kenni Elm Olsen, a special consultant at the Danish Data Protection Authority has in a press release stated: “One of the basic principles of the GDPR is that one should only process data that one needs - and when it is no longer needed, it should be deleted. When it comes to an organization the size of Danske Bank, which has many and complex systems, it is particularly crucial to be able to document that the deletion actually takes place."
Why a police report?
The Danish Data Protection Authority always makes a concrete assessment of the seriousness of the case, pursuant to Article 83 (2) of the GDPR, when assessing which sanction the authority considers to be the correct one.
In assessing whether a fine should be imposed, the Danish Data Protection Authority has considered the fact that the infringement relates to a fundamental principle of the processing of personal data and affects a very large number of data subjects.
In its assessment of the case, the Danish Data Protection Authority has taken into account the nature and gravity of the infringement and the requirement of the GDPR that a fine in each case must be effective, proportionate and have a deterrent effect.
It has also been taken into consideration that the bank has made efforts to demonstrate that it complies with its obligations. This means that the bank has sought to limit the harm that data subjects could potentially suffer.
In addition, the Danish Data Protection Authority has emphasized that Danske Bank has actively contributed to the disclosure of the case. Despite the bank's willingness and thousands of hours of compliance work, the bank is now set for the largest GDPR fine in Danish history if the case goes as the Danish Data Protection Authority has suggested.
Whether the fine is historically high or amounts to 'peanuts' for a company like Danske Bank depends largely on the eyes of the beholder.
The level of fines in Denmark has previously been criticized for being too low when it has come to breaches of GDPR. An example of this occurred in 2021, when a furniture company was set to receive a fine of DKK 1.5 million (approximately € 200.000), but when the case went to court, the fine was lowered to DKK 100,000 (approximately € 13.500).
In the case of Danske Bank, however, the level of the fine imposed is six or seven times higher than any previous fine imposed by the Danish Data Protection Authority, which is why the fine imposed constitutes a significant signal from the Danish Data Protection Authority.
It will be interesting to see whether the public prosecutor will come through with the fine, as this will undoubtedly set a new and significant precedent for the Danish level of fines for violations of the GDPR.
Article provided by INPLP member: Claas Thöle (Advores Advokater & Rechtsanwälte, Denmark)
Dr. Tobias Höllwarth (Managing Director INPLP)