APD/GBA (Belgium) - 103/2021

APD/GBA (Belgium) - 103/2021
Authority:	APD/GBA (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 100, §1er, 1° Law of 3 December 2017 on the creation of the DPA (LCA)
Type:	Complaint
Outcome:	Other Outcome
Started:
Decided:	14.09.2021
Published:	14.09.2021
Fine:	None
Parties:	n/a
National Case Number/Name:	103/2021
European Case Law Identifier:	n/a
Appeal:	n/a
Original Language(s):	French
Original Source:	APD (in FR)
Initial Contributor:	n/a

The Belgian DPA closed a case after a data subject withdrew their complaint, because it considered that any potential infringements were inextricably linked to the willingness of the complainant to exercise their right to erasure pursuant to Article 17 GDPR.

English Summary

Facts

A data subject (the Complainant) requested a search engine provider to erase one or more links to web pages where his name was appearing. The search engine provider rejected the erasure request of the Complainant. The Complainant therefore filed a complaint with the Belgian DPA, but then decided to withdraw his complaint before the Belgian DPA had come to any conclusion.

Holding

In its decision, the Belgian DPA first stated that the withdrawal of a complaint does not as such put an end to any potential violation of the GDPR, and therefore does not deprive the DPA from its competences to assess whether the reported facts constitute an infringement. The Belgian DPA noted in this respect that the control it exercises does not aim so much at settling disputes between parties, but rather at ensuring compliance with the data protection rules.

In the present case, however, the Belgian DPA noted that the potential infringements of Article 17 GDPR by the search engine provider were inextricably linked to the willingness of the Complainant to exercise his right to erasure. Because the Complainant had informed the Belgian DPA of the fact that he longer wanted to exercise his right to erasure, the Belgian DPA thus concluded that the case had become moot. The Belgian DPA therefore closed the case without taking any further action.

Comment

This case shows us that when a complaint is being withdrawn, the DPA will close the case, except in special circumstances where infringements can still be found. In the present case, the DPA found however that the complaint had become moot, because it did not fall into the category of cases presenting exceptional circumstances which would justify the file not being closed.

Further Resources

Share blogs or news articles here!

English Machine Translation of the Decision

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

                                                                                                        1/7








                                                                               Contentious Room



                                        Decision on the merits 103/2021 of September 14, 2021






File number: DOS-2019-05732



Subject: Complaint relating to a de-listing request - classification without follow-up for

technical reasons





The Contentious Chamber of the Data Protection Authority, made up of Mr. Hielke Hijmans,

Chairman, and Messrs. Yves Poullet and Frank De Smet;



Having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 relating to the protection
of natural persons with regard to the processing of personal data and on free movement

of this data, and repealing Directive 95/46 / EC (General Data Protection Regulation),

hereinafter "GDPR";



Having regard to the Law of 3 December 2017 establishing the Data Protection Authority (hereinafter LCA);



Having regard to the internal regulations as approved by the Chamber of Representatives on December 20, 2018

and published in the Belgian Official Gazette on January 15, 2019;



Having regard to the documents in the file;




took the following decision regarding:

                                                                                                       .

The complainant: X, hereinafter "the complainant"; .

                                                                                                       .

The first defendant: Y1, represented by ‘Me Gerrit Vandendriessche and Louis-Dorsan Joly, here-

                    after, hereafter: "The first defendant". Decision on the merits 103/2021 - 2/7



The second defendant: Y2, represented by ‘Me Gerrit Vandendriessche and Louis-Dorsan Joly, here-


                      after, hereafter: "the second defendant".





I. Facts and procedure


    1. On November 13, 2019, the complainant lodged a complaint with the Authority for the Protection of

        data against "Y".


        The subject of the complaint concerns the exercise of the right to erasure by the complainant against the

        data controller, regarding the personal data that appear as results

        when the complainant's name is typed into the complainant's search engine. The complainant has

        exercised their rights against the controller who refused to execute the request.


        The complainant lodged his request for erasure against the first defendant on 21

        October 2019. The latter responds to it on November 7, 2019 with a refusal.


    2. On November 19, 2019, the complaint is declared admissible by the Front Line Service on the basis

        articles 58 and 60 of the LCA and the complaint is transmitted to the Litigation Chamber under

                        er
        Article 62, § 1 of the LCA.

                                                                                                er
    3. On December 16, 2019, the Contentious Chamber decides, in respect of article 95, § 1, 1 ° and of article

        98 of the LCA, that the case may be dealt with on the merits.


    4. On December 17, 2019, the parties concerned are informed by registered mail of the

        provisions as set out in article 95, § 2 as well as in article 98 of the LCA. They are

        also informed, under Article 99 of the LCA, of the deadlines for submitting their

        conclusions.


    5. On December 26, 2019, the second defendant, through its counsel, agreed to

        receive all communications relating to the case electronically and request a

        copy of the file (art. 95, §2, 3 ° LCA), which is sent to him on January 6, 2020.


    6. On January 20, 2020 the first defendant, through its counsel, agrees to

        receive all communications relating to the case electronically. The two

        Defendants express on this occasion their wish to be heard.


    7. On January 27, 2020, the Litigation Chamber receives the conclusions in response from the defendants.

        with regard to the findings relating to the subject-matter of the complaint. They can be summarized

        as following :


        - 1st means: the claim is unfounded with regard to the second defendant who is not

             data controller; Decision on the merits 103/2021 - 3/7



    - 2 means: there are compelling legitimate reasons for the processing (article 21 of the GDPR) and the


        processing is necessary for freedom of expression and information (Article 17.3 of the GDPR).

          e
    - 3 plea: none of the grounds referred to in Article 17.1 of the GDPR are met in this case.

8. On October 28, 2020, the Chamber's registry contested requests for advice from the defendant.


    to confirm that they maintain their wish to be heard.


9. On November 6, 2020, the defendants confirm their wish to be heard. In the absence of

    conclusions on the part of the complainant, they request the contentious chamber that the latter, in view of

    of the hearing, specifies the fact and potential offenses which it intends to examine and which it intends to examine

    allow their arguments in this regard to be made in writing prior to the hearing.


10. On November 9, 2020, the complainant indicated that he wanted to “purely and simply desist from the complaint

    formed, in the hands of the Litigation Chamber against Y2 and Y1 ”and agree that its

    complaint is considered to be moot.


11. On December 3, 2020, the Litigation Chamber sends a letter to the defendants in response

    to their letter of November 6, 2020. She indicates that in their conclusions in response they have

    had the opportunity to present their arguments regarding the elements below:


    - the identity of the data controller;


    - possible violations of Articles 17 and 21 of the GDPR.


    She also indicated that the following points will be the subject of questions during the hearing:


    - Articles 12, 13, and 14 of the GDPR;


    - Article 6.1.f of the GDPR.


    December 24, 2020 is given as the deadline for filing conclusions for

    defendants.


12. On the same day, the Litigation Division replied to the complainant's email of November 9, 2020. She

    indicates that he has taken due note of his decision not to intervene in this case and specifies that this

    withdrawal does not terminate the jurisdiction of the Contentious Chamber since it does not aim to

    to settle disputes between parties, but to monitor compliance with the legislation relating to

    Protection of personal data.


    In application of this, the Contentious Chamber declares that it is continuing the examination of the case in

    question and specifies that a hearing date will be set so that the parties can be heard,

    although the complainant's participation is no longer expected. Decision on the merits 103/2021 - 4/7




13. On December 7, 2020, the counsel for the defendants spoke by telephone

    with the President of the Litigation Chamber regarding the organization of the next stages of the

    case.


14. Following this telephone conversation, on December 14, 2020, the defendants sent

    a letter to the Litigation Chamber in which they formulate the following five requests

    :


    - A clarification as to the targeted entities (the first and the second defendant);


    - An unresolved filing of the case and the withdrawal of their identification data from the decision

        published;


    - The suspension of the case until the judgment of the Markets Court in another case

        involving the second defendant be returned;


    - A clarification of the alleged facts and offenses;


    - An extension of the deadline to conclude.


15. On December 22, 2020, the Contentious Chamber replied to this letter. Elley confirms that the parties

    at issue are the first and second defendant and that a new deadline for submissions

    will be communicated to the parties after the Markets Court has delivered its judgment in the other

    case mentioned by the defendants.


16. The aforementioned judgment of the Cour des marchés is delivered on June 30, 2021. The Court decides there that if the

    Litigation Chamber wishes to impose measures and sanctions on Y2, which is not in principle

    not responsible for processing data concerning the search engine, it must demonstrate

    and justify the existence in concreto of an inseparable link with the data controller, by

    the occurrence Y1. Regarding the publication of the decision that was the subject of the dispute, without withdrawal of

    identification data of Y2, the Court considers that this choice of the Litigation Chamber was based

    validly on Article 100, §1, 16 ° of the LCA and that he was sufficiently motivated in the present case.






II. Motivation



17. The case brought for the examination of the Litigation Chamber covers the exercise by the complainant,

    right to erasure against defendants. The request relates to links, referenced

    in the results offered by the search engine operated by the defendants when the name

    of the complainant is wanted. Decision on the merits 103/2021 - 5/7




    18. Reference links are press articles published online which relate to activities

         complainant policies. One of the links is from 2013 and the other three are from 2017. The complainant

         believes that these affect his professional opportunities in the context of his research

         of employment.



    19. The complainant's request was rejected by the defendants on the basis that “after examination

         the balance between the interests and rights associated with the content in question, including factors

         such as public interest, Y decided not to block it. "


         In their conclusions, the defendants put forward three pleas (see point 7). They ask

         to declare the request unfounded.


    20. On December 14, 2020, the defendants ask the Litigation Chamber to classify the

         complaint without follow-up.


    21. The Contentious Chamber recalls that it recently published a note relating to its policy of

                                 1
         classification without continuation. This note clarifies certain elements of its procedure and establishes the priorities

         from the room.


    22. The scenario of this file can be found in point A.6 of this policy. It is indeed a

         file in which the complainant withdrew the complaint.

         normally involves a filing of the case, except in exceptional circumstances.


    23. It is therefore a matter here for the Contentious Chamber to examine whether certain circumstances

         exceptional justify that the file should not be closed.


         The case concerns the complainant's exercise of his right to erasure. If this right is to


         consider it a major protection of the people concerned, it is, however, intimately

         linked to the complainant's desire to exercise their rights. The fact that the complainant informs the Chamber

         contentious of his desire to no longer exercise this right therefore empties the file of legal questions

         regarding this point.


    24. However, it emerges from the file that other data protection issues could

         also be examined. This concerns more particularly questions related to the principle of

         transparency and the right to information about the response provided by the defendants to the complainant

         (Articles 12, 13, and 14 of the GDPR). This is one of the points that the Contentious Chamber


         had underlined in his letter of December 3, 2020.


    25. The Contentious Chamber believes that these issues could be subject to substantive consideration.

         In fact, the control by the contentious chamber does not aim so much at settling disputes between parties.

         to be one of the instruments available to ODA to ensure compliance with the rules relating to



1 Policy of dismissal of the Litigation Chamber, published on June 18, 2021 (available at:
https://www.autoriteprotectiondonnees.be/publications/politique-de-classement-sans-suite-de-la-chambre-contentieuse.pdf) Decision on the merits 103/2021 - 6/7



        data protection, in accordance with the provisions of the European treaties, the GDPR and the


        LCA. If a complaint is lodged and is then sent for examination to the Litigation Chamber

        as an admissible complaint, the Litigation Chamber must assess whether the reported facts constitute
                                                                                                          2
        an infringement of one of the legal provisions, compliance with which is subject to ODA control. This

        control also extends to the assessment of infringements that the complainant would not have

        directly identified itself and that the Chamber would subsequently report in accordance with the

        contradictory principle.


    26. The mere fact that the complainant withdraws his complaint is therefore not such as to remove any violation.

        which could have been committed previously by the defendant on the one hand and is not likely to

        deprive the competent bodies of the Data Protection Authority, including the Chamber

        Litigation, the exercise of their respective skills on the other hand.


    27. The Contentious Chamber notes, however, that in the present case, the violations referred to in

        point 24 are - in the context of this case - inextricably linked to the exercise of law by the

        Complainant.In the state of the case, the withdrawal of the complaint, the

        legal element enabling it to pursue the examination of these violations and to exercise

        effective the control task assigned to it.


    28. However, the Contentious Chamber considers that the case is not entered in the category of cases

        presenting exceptional circumstances which would justify the file not being closed

        without continuation.


    29. Consequently, the contentious division decides to dismiss the case for reasons

        technical due to the withdrawal of the complaint by the defendant and, consequently, the impossibility of

        demonstrate other potential violations that can be attributed to the defendant.


    30. Due to the discontinuation of the decision and its publication methods (see point 30),

        the Contentious Chamber considers that the requests of the defendant (see point 14) were

        encountered and that there is therefore no need to proceed to a hearing.







III. Publication of the decision


    31. Considering the importance of transparency with regard to the decision-making process and

        substantive decisions of the Litigation Chamber, this decision will be published on the website

        of ODA by deleting the direct identification data of natural persons.

        The direct identification data of the defendant are also deleted, being





2
 Decision 63/2020 of the Contentious Chamber, point 22. Decision on the merits 103/2021 - 7/7




        given that the decision is not of sufficient public interest to justify maintaining these

        data.




    FOR THESE REASONS,

    the Contentious Chamber of the Data Protection Authority decides, after deliberation:


    - Pursuant to Article 100, § 1, 1 ° of the LCA, to close the case without further action for reasons

        techniques ;



    Pursuant to Article 108, § 1 of the LCA, this decision may be appealed against to the

    Market Court within thirty days of its notification, with the Authority

    data protection as a respondent.









(Sé) Hielke Hijmans

President of the Litigation Chamber