AEPD (Spain) - EXP202101314

AEPD (Spain) - R/00852/2021
Authority:	AEPD (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 15 GDPR Article 31 GDPR Article 13 LOPDGDD
Type:	Complaint
Outcome:	Upheld
Started:
Decided:
Published:	03.12.2021
Fine:	None
Parties:	AD735 DATA MEDIA ADVERTISING S.L
National Case Number/Name:	R/00852/2021
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	Spanish
Original Source:	AEPD (in ES)
Initial Contributor:	Sergi Ariño Mayans

The Spanish DPA ordered a controller to comply with a data subject's access request, either by providing the requested information or refusing to company. in which case it has to explain its reasoning.

English Summary

Facts

A data subject made use of their right of access with AD735 DATA MEDIA ADVERTISING S.L. via phone and several emails, but the company ignored the request and did not provide the requested information.

Holding

The DPA held that according to Article 15 GDPR the data subject shall have the right to obtain confirmation from the controller as to whether or not their personal data is being processed, as well as access to that personal data. As a consequence, the DPA held that the controller should grant the data subject's request and provide this information within ten business days following this decision, or deny the request indicating the causes and reasoning. The action taken as a result of this decision shall be communicated to the DPA.

In addition, the DPA warned that failure to comply with this decision will be sanctioned as an infringement of Article 58(2) GDPR.

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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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     File No.: EXP202101314



                           RESOLUTION NO: R / 00852/2021

Considering the claim made on April 21, 2021 before this Agency by A.A.A. (on
forward, the complaining party), against AD735 DATA MEDIA ADVERTISING S.L. (on

hereinafter, the claimed party), for not having been duly attended to their right to
suppression.

The procedural actions provided for in Title VIII of the Law have been carried out.
Organic 3/2018, of December 5, Protection of Personal Data and guarantee of

digital rights (hereinafter LOPDGDD), the following have been verified


                                      FACTS

FIRST: The claimant exercised the right of access against the claimed with NIF

B87781795, without your request having received the legally established reply.

According to the claimant, during the course of a commercial call
he requested access and was denied it, referring him to a website. Later,
requested through several emails access to the claimed entity without

receive reply.

Given the lack of legal attention, he filed a claim with this Agency
Spanish Data Protection, starting the procedure TD / 00035/2021. After
the corresponding instruction this one was solved


       «FIFTH: In the case analyzed here, the complaining party exercised its
       right of access and, in principle, he did not receive a response, but later on
       Throughout the procedure, the defendant requested the necessary data to
       be able to serve you. The claimant is aware of these circumstances, both for
       the emails sent by the claimed as for the transfer that made this

       However, the Agency does not certify having sent the request for the right
       could be taken care of.

       Based on the foregoing, considering that the present procedure has
       as an object that the guarantees and rights of those affected remain

       duly restored, and since the defendant answered the claimant
       requesting a correction to be able to attend the right that the claimant
       did not respond, we consider that the request has been attended by denying
       motivated but outside the established deadline.


       Based on the foregoing, considering that the present procedure has
       as an object that the guarantees and rights of those affected remain
       duly restored, it is necessary to first estimate the claim for reasons
       formal since it has been attended after the deadline and second, notify the

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       claimant who must correct what is requested by the claimed and thus be able to
       obtain access to your data.

       Considering the aforementioned precepts and others of general application,
       the Director of the Spanish Agency for Data Protection RESOLVES:


       FIRST: ESTIMATE for formal reasons, the claim made by
       A.A.A., against the entity AD735 DATA MEDIA ADVERTISING S.L .. No
       However, the issuance of a new certification by said
       entity, as the response was issued extemporaneously, without
       requires the performance of additional actions by the person in charge. "


SECOND: On April 21, 2021, a letter from the
claimant stating that during the processing of the procedure
TD / 00035/2021, dated March 2, 2021, received an email from the
entity requesting the telephone number to "accurately identify your registration and

facilitate the requested right of access as soon as possible ",.

The same day he received that email, he answered by giving him the phone number
requested, and received the following response:

«Thank you for contacting AD735 DATA MEDIA ADVERTISING, S.L.,

we have successfully received your email.
We inform you that to process the cancellation / deletion of your personal data,
You must access the following link: www.ad735.es/bajas. WILL NOT BE ATTENDED
REMOVAL / DELETE REQUESTS AT THE MAILING ADDRESS
DPO@AD735.ES.
If you have exercised any other right recognized in the RGPD, or have made

a consultation, we will attend to you as soon as possible.
You can find more information on the web
http://www.ad735.es/derechosRGPDAD735.pdf »

For this reason, the present procedure was opened, transferring the
claim to the claimed party, dated September 7, 2021, granting

hearing process, so that within fifteen business days it could present the
allegations that it deems appropriate.

The electronic notification sent was “expired” as it was not accessed, due to
which, it was reiterated by postal mail, being received on the date
September 29, 2021, without this Agency having any response from the

claimed part.


                         FOUNDATIONS OF LAW


FIRST: The Director of the Spanish Agency for
Data Protection, in accordance with the provisions of section 2 of article 56 in
in relation to paragraph 1 f) of article 57, both of Regulation (EU) 2016/679 of the
European Parliament and of the Council of April 27, 2016 on the protection of


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natural persons with regard to the processing of personal data and the free
circulation of these data (hereinafter, GDPR); and in article 47 of the LOPDGDD.


SECOND: In accordance with the provisions of article 55 of the RGPD, the Agency
Spanish Data Protection is competent to perform the functions that
are assigned to it in its article 57, among them, that of enforcing the Regulation and
promote the awareness of those responsible and those in charge of the treatment
about their obligations, as well as dealing with claims
submitted by an interested party and investigate the reason for them.


Correlatively, article 31 of the RGPD establishes the obligation of those responsible
and those in charge of the treatment to cooperate with the control authority that requests it in
the performance of their duties. In the event that they have designated a
data protection officer, article 39 of the RGPD attributes to him the function of

cooperate with said authority.

Similarly, the domestic legal system, in article 65.4 of the LOPDGDD, has
Provided a mechanism prior to the admission for processing of the claims that are
made before the Spanish Agency for Data Protection, which consists of giving
transfer of the same to the data protection delegates designated by the

responsible or in charge of the treatment, for the purposes provided in article 37 of
the aforementioned norm, or to them when they have not been designated, to proceed to the
analysis of said claims and to respond to them within a month.

In accordance with these regulations, prior to the admission for processing of the

claim that gives rise to the present procedure, it was transferred to the
responsible entity to proceed with its analysis, provide a response to this Agency
within a month and certify having provided the claimant with the proper response,
in the event of exercise of the rights regulated in articles 15 to 22 of the
GDPR.


The result of said transfer did not allow for the satisfaction of the claims of the
complaining party. Consequently, on August 23, 2021, for the purposes
provided for in article 64.2 of the LOPDGDD, the Director of the Spanish Agency for
Data Protection agreed to admit the submitted claim for processing. Saying
The agreement of admission for processing determines the opening of the present procedure of

lack of attention to a request to exercise the rights established in the
Articles 15 to 22 of the RGPD, regulated in article 64.1 of the LOPDGDD, according to the
which:

"1. When the procedure refers exclusively to the lack of attention of a

request to exercise the rights established in articles 15 to 22 of the
Regulation (EU) 2016/679, will start by agreement of admission for processing, which will be
adopt in accordance with the provisions of the following article.
In this case, the deadline to resolve the procedure will be six months from
from the date on which the claimant was notified of the admission agreement to

Procedure. After this period, the interested party may consider his
claim".



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The purging of administrative responsibilities in the framework of
of a sanctioning procedure, whose exceptional nature implies that it is chosen,
whenever possible, due to the prevalence of alternative mechanisms that have

I amparo in the current regulations.

It is the exclusive competence of this Agency to assess whether there are responsibilities
administrative procedures that must be purged in a sanctioning procedure and, in
Consequently, the decision on its opening, there being no obligation to initiate a
procedure before any request made by a third party. Such a decision must

be based on the existence of elements that justify said start of the activity
sanctioning, circumstances that do not concur in the present case, considering that
with this procedure, the guarantees and
Claimant's rights.


THIRD: The rights of people in terms of data protection
Personal data are regulated in articles 15 to 22 of the RGPD and 13 to 18 of the
LOPDGDD. The rights of access, rectification, deletion,
opposition, right to limitation of treatment and right to portability.

The formal aspects relating to the exercise of these rights are established in the

Articles 12 of the RGPD and 12 of the LOPDGDD.

It also takes into account what is expressed in Considerations 59 and following of the
GDPR.


In accordance with the provisions of these rules, the data controller
should arbitrate formulas and mechanisms to facilitate the interested party the exercise of their
rights, which will be free (without prejudice to the provisions of articles 12.5 and 15.3
of the RGPD), and is obliged to respond to requests made no later than one
month, unless you can show that you are unable to identify the

interested, and to express their reasons in case they were not to attend said
application. The person responsible is responsible for the proof of compliance with the duty of
Respond to the request for the exercise of their rights made by the affected party.

The communication addressed to the interested party on the occasion of their request must
express themselves in a concise, transparent, intelligible and easily accessible way, with a

clear and simple language.

In the case of the right of access to personal data, in accordance with the
established in article 13 of the LOPDGDD, when the exercise of the right is
refers to a large amount of data, the person in charge may request the affected party to

specify the "data or processing activities to which the request refers." The
Right will be understood to be granted if the person in charge provides remote access to the data,
the request being considered as attended (although the interested party may request the information
referring to the extremes provided for in article 15 of the RGPD).


The exercise of this right may be considered repetitive on more than one occasion.
during the period of six months, unless there is legitimate cause for it.



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On the other hand, the request will be considered excessive when the affected party chooses a medium
other than the one offered that involves a disproportionate cost, which must be
assumed by the affected party.


FOURTH: In accordance with the provisions of article 15 of the RGPD and article 13 of the
LOPDGDD, "the interested party has the right to obtain from the person responsible for the treatment
confirmation of whether or not personal data concerning you is being processed and, as such
case, right of access to personal data ”.


Like the rest of the rights of the interested party, the right of access is a
very personal right. Allows the citizen to obtain information about the treatment
what is being done of your data, the possibility of obtaining a copy of the data
personal concerns that are being processed, as well as
information, in particular, about the purposes of the treatment, the categories of data

personal concerned, the recipients or categories of recipients to whom the
communicated or will be communicated the personal data, the foreseen term or criteria
conservation, the possibility of exercising other rights, the right to present a
claim before the supervisory authority, the information available on the origin of
the data (if these have not been obtained directly from the owner), the existence of
automated decisions, including profiling, and information about

transfers of personal data to a third country or to an international organization.
The possibility of obtaining a copy of the personal data being processed does not
negatively affect the rights and freedoms of others, that is, the right to
Access will be granted in a way that does not affect third party data.


In the case analyzed here, the examination of the documentation provided, has
It has been established that the claimant requested access to their personal data and that
the claimed entity has not duly attended the aforementioned right.

Considering the aforementioned precepts and others of general application,

the Director of the Spanish Agency for Data Protection RESOLVES:

FIRST: ESTIMATE the claim made by D.A.A.A. and urge AD735 DATA
MEDIA ADVERTISING S.L. with NIF B87781795, so that, within ten
business days following notification of this resolution, send to the party
claimant certification in which the requested right of access is addressed or

motivated denial indicating the reasons why it is not appropriate to address the
petition, in accordance with the provisions of the body of this resolution. The
Actions carried out as a consequence of this Resolution must be
communicated to this Agency within the same period. Failure to comply with this resolution
could lead to the commission of the offense considered in article 72.1.m) of the

LOPDGDD, which will be sanctioned, in accordance with article 58.2 of the RGPD.

SECOND: NOTIFY this resolution to A.A.A. and AD735 DATA MEDIA
ADVERTISING S.L ..


In accordance with the provisions of article 50 of the LOPDGDD, this
Resolution will be made public once it has been notified to the interested parties.



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Against this resolution, which puts an end to the administrative procedure in accordance with article 48.6
of the LOPDGDD, and in accordance with the provisions of article 123 of the LPACAP, the
Interested parties may file, optionally, an appeal for reconsideration before the

Director of the Spanish Agency for Data Protection within a month to
counting from the day after notification of this resolution or directly
Contentious-administrative appeal before the Contentious-Administrative Chamber of the

National High Court, in accordance with the provisions of article 25 and section 5 of
the fourth additional provision of Law 29/1998, of July 13, regulating the
Contentious-administrative jurisdiction, within a period of two months from the
day following notification of this act, as provided in article 46.1 of the

referred Law.

                                                                                      1195-180321
Mar Spain Martí
Director of the Spanish Agency for Data Protection















































28001 - Madrid 6 sedeagpd.gob.es