AEPD (Spain) - PS/00362/2020

AEPD - PS-00362-2020
Authority:	AEPD (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 43(1)(b) LSSI Article 21 LSSI Article 38(4)(d) LSSI Article 39(1)(c) LSSI
Type:	Investigation
Outcome:	Violation Found
Started:
Decided:	19.02.2021
Published:
Fine:	2000 EUR
Parties:	BEINNOVA.ES
National Case Number/Name:	PS-00362-2020
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	Spanish
Original Source:	AEPD (in ES)
Initial Contributor:	Francesc Julve Falcó

The Spanish DPA (AEPD) fined a website creation company €2000 for sending advertising e-mails without the recipient's consent.

English Summary

Facts

The complainant informed the AEPD on 2 July 2020 that he had been receiving e-mails from the website creation company "beiNNova" without him having any relationship with that company.

The complainant sent emails to unsubscribe to the newsletter and to stop the sending of unwanted mail but he did not receive a reply from the company and the sending of emails continued.

The AEPD initiated a sanctioning proceeding against "bieNNova" on 4 December 2020. Thus, the AEPD tried to contact the company and did not obtain any response or allegations.

Dispute

Is sending advertising emails without the consent of the recipient an infringement of Article 21 of the Spanish Information Society Services Act (LSSI) implementing the e-Privacy Directive?

Holding

The AEPD considered that the conduct of the company "bieNNova" infringed Article 21 LSSI (Ley de Servicios de Sociedad de la Información y de Comercio Electronico).

Article 21 establishes that it is forbidden to send advertising or promotional communications by e-mail or any other equivalent means of electronic communication that have not been previously requested or expressly authorised by the recipients of such communications.

Article 38(4)(d) of the same law graduates the sanction as minor, defining the conduct as "the sending of commercial communications by electronic mail or other equivalent means of electronic communication when such mailings do not comply with the requirements set out in Article 21 and do not constitute a serious infringement".

In this case, the aggravating circumstance of the existence of intentionality was taken into account (Article 40(a) LSSI).

The AEPD imposed a fine of €2000 for failing to comply with Article 21 LSSI.

Comment

The Director of the Spanish Data Protection Authority is competent to carry out this procedure, in accordance with the provisions of Article 43(1), second paragraph, of the LSSI.

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English Machine Translation of the Decision

The decision below is a machine translation of the Spanish original. Please refer to the Spanish original for more details.

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     Procedure No.: PS / 00362/2020
938-0419
                RESOLUTION OF SANCTIONING PROCEDURE


In the sanctioning procedure PS / 0362/2020, instructed by the Spanish Agency for
Data Protection, before D. A.A.A. (BEINNOVA.ES), with NIF.:***NIF.1, hereinafter,
“The person claimed”), by virtue of the complaint presented by D. *** B.B.B., (In addition
lante, “the claimant”), and based on the following:

                                   BACKGROUND

FIRST: On 07/02/20, you have an entry in this Agency, a complaint filed
by the claimant in which it indicated, among others, the following:


“I denounce the indiscriminate harassment of mailings from the beiNNova company. I do not know
this company, I have tried to unsubscribe from their newsletter and they even wrote
an email. Ignore all attempts ”. The claim letter is
accompanies the following documentation:


1.- Newsletter sent on 06/03/20, from the email address: beiNNova;
<info © beinnova.es> to the claimant's email address. In this email, there is a
banner with the following information: "Legal note: The content of this email
co and its attachments are confidential. In compliance with the RGPD you can exercise

close the rights by sending an email to: info@beinnova.es

2.- Newsletter sent on 06/10/20, from the email address: beiNNova;
<info © beinnova.es> to the claimant's email address. In this email, there is a
banner with the following information: "Legal note: The content of this email

co and its attachments are confidential. In compliance with the GDPR (you can exercise
close the rights by sending an email to: info@beinnova.es.

3.- Email dated 06/10/20, sent by the claimant to the address:
beiNNova <info © beinnova.es>, in response to the email from point (2),

saying in it: “I have NOT subscribed to your newsletter. I have unsubscribed 3 times
and they keep sending me emails. I would appreciate it if you check that my email has been deleted correctly.
tamente, since if it continues I will file a complaint with the AEPD ”.

4.- Newsletter of 06/17/20, from the email address: beiNNova;

<info © beinnova.es> to the claimant's email address.

SECOND: On 12/04/20, the Director of the Spanish Agency for the Protection of
Data agreed to initiate a sanctioning procedure against the claimed entity, by virtue of
the powers established, for failing to comply with the provisions of article 21 of the LSSI, impose

nding an initial penalty of 2,000 euros (two thousand euros) to the person claimed.

FOURTH: Notified the initiation agreement to the person claimed, it has not been presented
no brief of allegations, in the period granted for that purpose.




                                 PROVEN FACTS
C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 2/4








1º.- According to the complainant's complaint, he receives emails from the company beiN-
Nova, without your consent.


2º.- In view of the facts presented in the claim, this Agency directed two studies
Information request credits from the claimed entity. None of which
had an answer.

3.- Initiated sanctioning proceedings against the claimed entity, as of today there has been no
received in this Agency, any letter of allegations to said initiation.


                             FOUNDATIONS OF LAW

                                              I
The Director of the Spanish Agency is competent to resolve this procedure

of Data Protection, in accordance with the provisions of art. 43.1, second paragraph
second, of the LSSI.
                                             II
The joint assessment of the documentary evidence in the procedure brings to
knowledge of the AEPD, a vision of the denounced action that has been
strapped in the facts declared proven above related.


In the present case, the claimant has received several emails, with
"Newsletter", of the claimed entity. According to the complaint, he does not know the company and
you have never requested such a service. It also indicates that you have attempted to unsubscribe from
the "newsletter", up to three times in the link intended for it in the

received emails, and even sent an email to the
address info@beinnova.es, requesting to unsubscribe, but has not received a reply
some.

                                             III
The facts presented, consisting of the sending of commercial communications, do not

consented to the claimant, constitute an infringement, on the part of the claimed entity
gives the provisions of article 21 of the LSSI, which provides the following:

"1. The sending of advertising or promotional communications by co-
electronic mail or other equivalent electronic means of communication that previously
have not been requested or expressly authorized by the recipients of the
themselves.

2. The provisions of the preceding section shall not apply when there is a relationship
prior contractual provision, provided that the provider has obtained lawfully the
contact details of the recipient and will use them to send communications with
related to products or services of your own company that are similar

those who were initially contracted with the client.
In any case, the provider must offer the recipient the possibility of opposing the

processing of your data for promotional purposes using a simple procedure
and free of charge, both at the time of data collection and in each of the
commercial communications to direct you.

When the communications have been sent by email, said me-
The diode must necessarily consist of the inclusion of an email address

C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 3/4








address or other valid electronic address where this right can be exercised, remain-
It is prohibited to send communications that do not include said address ”.

                                             IV

The aforementioned offense is classified as minor in art. 38.4.d) of said nor-
ma, which qualifies as such, “Sending commercial communications by email
sole or other equivalent electronic means of communication when in said shipments
the requirements established in article 21 are not met and does not constitute an infringement
serious".


In accordance with the provisions of article 39.1.c) of the LSSI, minor offenses may
be sanctioned with a fine of up to € 30,000, establishing the criteria for its

regulation in article 40 of the same rule. After the evidence obtained, it is considered
Therefore, in this case, it acts as an aggravating factor:

    - The existence of intentionality (section a), since, the claimed entity in-

        via commercial advertising to the claimant's phone, through emails
        unique without consent.

In accordance with these criteria, it is considered appropriate to impose a sanction on the defendant
2,000 euros (two thousand euros), for sending advertising emails without the

consent of the affected party.

In view of the above, the following is issued:

                                       RESOLVES:


FIRST: IMPOSE D. A.A.A. (BEINNOVA.ES) with NIF.:***NIF.1, a sanction of

2,000 euros (two thousand euros), for violation of article 21 of the LSSI.
SECOND: NOTIFY this resolution to D.A.A.A. (BEINNOVA.ES) and to the
clamoring about the result of the claim.

Warn the sanctioned person that the sanction imposed must be effective once it is
executive this resolution, in accordance with the provisions of article 98.1.b)

of Law 39/2015, of October 1, on the Common Administrative Procedure of the Ad-
Public Ministries (LPACAP), within the voluntary payment period indicated in article
68 of the General Collection Regulation, approved by Royal Decree 939/2005,
of July 29, in relation to art. 62 of Law 58/2003, of December 17, me-
when entering the restricted account number ES00 0000 0000 0000 0000 0000, opened

on behalf of the Spanish Agency for Data Protection in Banco CAIXABANK,
S.A. or otherwise, it will be collected in the executive period.
Received the notification and once executive, if the date of execution is found

between the 1st and the 15th of each month, both inclusive, the deadline for making the vo-
luntario will be until the 20th day of the following or immediately subsequent business month, and if
between the 16th and the last day of each month, both inclusive, the payment term
It will be until the 5th of the second following or immediate business month.

In accordance with the provisions of article 82 of Law 62/2003, of December 30-
of fiscal, administrative and social order measures, this Resolution is

C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 4/4








will be made public, once it has been notified to the interested parties. The publication is made-
It will be in accordance with the provisions of Instruction 1/2004, of December 22, of the Agency

Spanish Data Protection Agency on the publication of its Resolutions.
Against this resolution, which puts an end to administrative proceedings, and in accordance with
established in articles 112 and 123 of the LPACAP, the interested parties may interpose

ner, optionally, appeal for reconsideration before the Director of the Spanish Agency
of Data Protection within a period of one month from the day following the notification
fication of this resolution, or, directly administrative contentious appeal before the
Contentious-administrative Chamber of the National Court, in accordance with the provisions
set out in article 25 and in section 5 of the fourth additional provision of the Law

29/1998, of 07/13, regulating the Contentious-administrative Jurisdiction, in the
or two months from the day following the notification of this act, according to
the provisions of article 46.1 of the aforementioned legal text.

Finally, it is pointed out that in accordance with the provisions of art. 90.3 a) of the LPACAP,
may provisionally suspend the final resolution through administrative channels if the interested party
do manifests its intention to file a contentious-administrative appeal. Of being
In this case, the interested party must formally communicate this fact in writing

addressed to the Spanish Agency for Data Protection, presenting it through the Re-
Electronic registry of the Agency [https://sedeagpd.gob.es/sede-electronicaweb/], or to
through any of the other records provided for in art. 16.4 of the aforementioned Law
39/2015, of October 1. You must also forward the documentation to the Agency
that certifies the effective filing of the contentious-administrative appeal. If the

Agency was not aware of the filing of the contentious-administrative appeal
trative within two months from the day following notification of this
resolution, would terminate the precautionary suspension.


Mar Spain Martí
Director of the Spanish Agency for Data Protection.


























C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es