HDPA (Greece) - 37/2020

HDPA - 37/2020
Authority:	HDPA (Greece)
Jurisdiction:	Greece
Relevant Law:	Article 4(7) GDPR Article 11 L. 3471/2006
Type:	Complaint
Outcome:	Upheld
Started:
Decided:
Published:	02.10.2020
Fine:	1000 EUR
Parties:	n/a
National Case Number/Name:	37/2020
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	Greek
Original Source:	HDPA (in EL)
Initial Contributor:	Antigoni Logotheti

The HDPA fined politician €1.000 for unsolicited political communication (SMS) without consent or any other legal basis according to the national provisions on unsolicited communications.

English Summary

Facts

Individual submitted a complaint on unsolicited political communications (SMS) he received by politician to whom he had no previous connection/relation.

Dispute

Is unsolicited communication via SMS of a politician to whom the recipient never had contact legal?

Holding

The HDPA found that the politician acts as data controller for this communication and that he did not obtain the recipient's consent. However, the politician provided and satisfied the rights of access and objection.

The HDPA upheld the complaint and imposed the proportionate fine of EUR 1000.

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English Machine Translation of the Decision

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

PROTECTION OF PERSONAL DATA
37/2020
(Department)
The Personal Data Protection Authority met in a department composition at its headquarters on 19-02-2020 at the invitation of its President, in order to examine the case mentioned in the history of the present. Charalambos Anthopoulos attended as President of the Authority Constantine Menoudakou and Deputy President Georgios Batzalexis, the alternate members Evangelos Papakonstantinou and Emmanuel Dimogenontakis, replacing the regular members Konstantinos Lambrinoudakis and Elenis Martsoukou respectively, who, although legally called in writing, did not participate as an alternate member. The meeting was attended by Georgios Roussopoulos, special scientist – auditor as assistant rapporteur and Irene Papageorgopoulou, employee of the administrative affairs department of the Authority, as secretary.
The Authority took into account the following:
The Authoritywas submitted to the Authority first. C/ES/4904/12-07-2019 complaint by A concerning an unclaimed communication policy (SMS message) for 
promotion of B’s candidacy in the parliamentary elections of...
In particular, according to the complaint, the complainant received on, on his mobile phone number, an SMS with “B” appearing as sender, which was of a political nature for the purposes of promoting the candidate’s candidacy in the forthcoming parliamentary elections of 26 May 2019, without having any previous relationship with him. The message was "The Lady...WE DECIDE ON OUR LIVES.WE VOTE... WE SUPPORT B!FOR EXCEPTION...’.The complainant also states that he contacted the above telephone number and, in a question as to the origin of the number, referred to him as a source of a regional part of a professional body in which he was formerly registered because of his professional status. The complainant now resides in another city.
In the context of the examination of this complaint, the Authority sent the complainant the number one. C/EX/4904-1/09-08-2019 document, in which he asked for his views on the complainants, taking into account the guidelines he has issued for political communication.
The complainant replied to the Authority within a short period of time, with number one. C/ES/5808/26-08-2019, in which it summarises:
1)	Accepts the sending of the message as part of the activity of notifying his candidacy in the parliamentary elections.
2)	He states that the recipients arose after selecting his mobile phone contacts, as well as from the corresponding messages he had sent in the previous parliamentary elections in 2015.
3)	Knowing that the legislation had to be complied with, he tried to make a further selection of the recipients.
4)	The message included the fixed phone of his office so that, in the event of an inconvenience, the recipient could request an exemption from a possible subsequent shipment.
5)	Some of the figures on the list that he drew up came from colleagues of the complainant, members of the professional body, as prior to the 2015 elections, he served as the... Regional Committee.
6)	The complainant was the only addressee to complain, in the communication with whom they recognised the error and excluded him from the list of recipients.
Then the Authority called the no. No. C/EX/7600/05-11-2019 document complained to a hearing at the meeting of the Department of the Authority on 04-12-2019, during which the above-mentioned complaint was discussed and the general practice followed for communication of a political nature by electronic means. That meeting was attended by the complainant, who stated his views orally and then submitted the number first. C/ES/8441/04-12-2019 memorandum. In addition to the original memorandum, it states:
1)	The complainant had received a similar message in the 2015 elections without protesting.
2)	The message was sent to a list extracted from the candidate’s mobile phone. A sample of the extracted file shall be provided.
3)	The complainant considers that there is previous contact and relationship.
4)	The indication of the text ‘For Exemption’ and the telephone number of the complainant’s office indicates that, if the recipient so wishes, they are excluded. The applicant’s collaborators had been specifically instructed to send SMS only to persons with whom there were already previous online contacts and had not requested their exemption, so they had accepted them.
5)	The practice of the complainant is no different from what all the nominees have done.
6)	There was no intention of disturbing the complainant.
The Authority, after examination of the evidence in the file, the hearing after hearing the rapporteur and the Assistant rapporteur, who left after the case and before the conference and the decision, and after an in-depth discussion
HE THOUGHT ACCORDING TO THE LAW.
1.	According to the article. That’s 4 bets.7 of General Regulation (EU) 2016/679 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereinafter referred to as Regulation), which is applicable from 25 May 2018, is defined as 'the natural or legal person, public authority,serviceor other body which, alone or jointly with others, determines the purposes and manner of processing personal data’.
2.	The issue of making unsolicited communications by any means of electronic communication, without human intervention, for direct marketing purposes of products or services and for all types of advertising purposes, is regulated in article 11 of Law 3471/2006 for the protection of personal data in the field of electronic communications. According to this article, such communication is permitted only if the subscriber expressly consents in advance. Exceptionally, according to Art.11 par.3 of Law 3471/2006, the e-mail contact details obtained legally, in the context of the sale of products or services or other transaction, may be used to directly promote similar products or services of the supplier or to serve similar purposes, even when the recipient of the message has not given his prior consent, provided that he is given in a clear and distinct manner the possibility of objecting, in an easy and free manner, to the collection and use of the data, as well as to the collection and use of the data, as well as to the use of the information.
the use ofit.
3.	Specifically for political communication through electronic means without human intervention and in accordance with the Authority’s guidelines on the processing of personal data for the purpose of political communication, taking into account both article 11 of Law 3471/2006, and the Authority’s Directive 1/2010 on political communication and the General Regulation (EU) 2016/679 on the protection of individuals with regard to the processing of personal data, which is implemented from 25 May 2018, the following shall apply:
Political communication is of  interest from the point of view of the protection of personal data, at any time, whether pre-electional or otherwise, by political parties, MPs, MEPs, factions and holders of elected positions in local government or candidates in parliamentary elections, elections to the European Parliament and local elections. Such persons shall become controllers in accordance with Regulation (EU) 2016/679, Article 4, point.7) where they define the purpose and method of processing. For example, when Members of Parliament or candidates receive data from political parties and process them for their personal political communication, they also become controllers. In this capacity and on the basis of the principle of accountability, they must be able to demonstrate compliance with their obligations and processing rules.
4.	When political communication is made using electronic means of communication, without human intervention, through public communication networks, such as the case of emails, the communication presupposes,¬in accordance with article 11 par.1 Law 3471/2006, as applicable, the prior consent of the data subject, without prejudice to paragraph 3 of the same article, as applicable. It is also noted that short text messages (SMS) are also emails according to the definitions of Law 3471/2006 and Directive 2002/58/EC.
5.	Political communication by electronic means without human intervention and without the consent of the data subject shall be permitted only if the following conditions are cumulatively met:
(a)The contact details have been lawfully obtained in the context of previous, similar contact with data subjects, and the subject during the collection of the data was informed of their use for the purpose of political communication, was given the opportunity to object to this use but did not express it. Prior contact need not be purely political, e.g. it is legitimate to send messages when the e-mail data were collected in the context of a previous invitation to participate in an event or action, regardless of its political nature. On the contrary, it is not considered to constitute such contact and it is not lawful to use electronic contact information for the purpose of the communication policy when these data were obtained in the context of a professional relationship, such as the use of the client file by a candidate. The controller shall provide the data subject with the opportunity to exercise the right of objection in an easy and clear manner, including in any political communication message. Each communication requires a clear and clear indication of the identity of the sender or person for whose benefit the message is sent, as well as a valid address to which the recipient of the message may request the termination of the communication.
6.	In this particular case, the complainant, on the basis of the above, has, as a controller, made a political communication by sending short text messages (SMS).Therefore, the legality of the mission is ensured only if the provisions referred to in paragraphs 4 above have been complied with. The responses of the controller shall indicate the
as follows:
7.	The controller had not received prior consent from the person to whom he sent a political communication message. Also, the contact details of the recipient of the message had not come into his possession as part of a previous similar contact with him. On the contrary, his personal information was obtained in the context of a previous activity in a professional and trade union body, which is not related to the specific political activity of the controller.
8.	The controller did not specify to the Authority the exact number of messages sent. In this regard, he only mentions that he sent to a list of contacts extracted from his mobile phone.
9.	The controller provided the data subject with the opportunity to exercise the right of opposition in an easy and clear manner. Indeed, the complainant exercised the right of access and opposition by telephone and the controller responded.
10.	By virtue of his capacity, the controller was fully aware of the current legal framework for political communication and of the Authority’s guidelines published and sent to political parties as early as April 2019.
11.	The controller cooperated with the Authority by responding without delay to the documents for clarification, providing the requested information both at the Authority’s meeting and in the memorandum submitted.
12.	No administrative penalty has been imposed on the controller by the Authority in the past. 
On the basis of the foregoing, the Authority unanimously considers that, according to article 11 of Law 3471/2006, the conditions of enforcement against the controller, based on article 13 of Law 3471/2006 in conjunction with article 21 par. 1 verse b of Law 2472/1997 and the article of 84 Law 4624/2019, the administrative sanction, referred to in the operative part of the present, which is judged proportional to the gravity of the infringement.
FOR THEIR SAKES
The Personal Data Protection Authority:
It imposes on B the effective, proportionate and dissuasive administrative fine that is appropriate in this particular case according to its specific circumstances, amounting to a thousand EUR (1.000,00) for the aforementioned infringement of article 11 of Law 3471/2006.
The President-in-Office 

Mr Charalambos Anthopoulos
 
Irene Papageorgopoulou