AEPD (Spain) - PS/00274/2020

AEPD - PS/00274/2020
Authority:	AEPD (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 21 GDPR Article 33(2) LOPDGDD Article 48(1)(b) LGT Article 23 LOPDGDD
Type:	Complaint
Outcome:	Upheld
Started:
Decided:	03.11.2020
Published:	16.11.2020
Fine:	1500 EUR
Parties:	Raise Marketing SL
National Case Number/Name:	PS/00274/2020
European Case Law Identifier:	n/a
Appeal:	n/a
Original Language(s):	Spanish
Original Source:	AEPD (in ES)
Initial Contributor:	n/a

The Spanish DPA (AEPD) imposed a fine of €1500 on Raise Marketing SL for a marketing call where the recipient was included on the "Robinson List". This was in violation of Articles 21 GDPR and 23 Spanish data protection law (LOPDGDD).

English Summary

Facts

The complainant received unwanted marketing calls from Raise Marketing SL despite being on the "Robinson List".

Raise Marketing has entered into an agency contract for teleshopping with Factor Energía SA. In this contract, it is stipulated that whenever Raise Marketing contact a recipient, the call will be associated to Raise Marketing rather than Factor Energía. Raise Marketing is also obliged to consult the "Robinson List" and refrain from contacting those included in the List.

Raise Marketing recognised that it had not respected its contractual obligations with Factor Energía.

Dispute

Does an unwanted marketing call to a person included on the "Robinson List" infringe that person's right to object?

Holding

The Spanish DPA (AEPD) held that it was important for Raise Marketing to note that the complainant was included on the "Robinson List" regardless of the contractual obligation.

According to Article 33(2) of the Spanish data protection law (LOPDGDD), Raise Marketing is responsible for the data processing since it used the claimant's data for its purposes.

The DPA held that the facts of the case suggest that the right to opposition was violated in breach of Article 48(1)(b) of the Spanish Telecommunications law (LGT) on the right to oppose unwanted calls. The DPA also highlighted that Raise Marketing violated the data subject's right to object (Article 21 GDPR and Article 23 LOPDGDD).

The DPA fined Raise Marketing €1500 for this violation of the law.

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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 / 00274/2020
RESOLUTION OF SANCTIONING PROCEDURE
Of the procedure instructed by the Spanish Agency for Data Protection and based on
to the following:
BACKGROUND
FIRST: D. AAA (hereinafter, the claimant) dated April 17, 2020
filed a claim with the Spanish Data Protection Agency. The
The claim is directed against RAISE MARKETING, SL with NIF B67543355 (in
forward, the claimed).
The claimant states that he receives commercial calls from the Factor entity
Energía SA, they identify themselves as your electricity and gas distributor offering you a
discount, but finally they are identified as Factor Energía, SA
On the other hand, it indicates that it expressed its opposition to
receive the same, but the calls do not stop.
Provide the following documentation:
Email received on May 25, 2018 from the List Service
Robinson, where they ask you to update your registration. The claimant answers
confirming that you have made a new registration. Also provides a screenshot
of the two lines that you have registered on the Robinson List, including the line
receiver ( *** TELEPHONE.1 ) and an invoice that proves its ownership.
SECOND: In accordance with article 65.4 of the LOPGDD, which has provided a
mechanism prior to the admission for processing of claims made before
the AEPD, consisting of transferring them to the Data Protection Delegates
designated by those responsible or in charge of the treatment, for the intended purposes
in article 37 of the aforementioned rule, or to these when it has not designated them,
transfer of the claim to the claimed entity to proceed with its analysis and
respond to the complaining party and this Agency within one month.
As a result of this process, on July 3, 2020, Factor Energía,
SA states that it has contracted with ADIGITAL the List filtering service
Robinson (provides invoice) and therefore they do not make calls to registrants.
They add that after the appropriate steps, it was found that the company that
made the call to the client was Raise Marketing, SL, with whom Factor Energía, SA
has an agency contract in teleshopping mode (that is, performs the
commercial promotional activity with its own database), in no case
provided by Factor Energía SA
On the other hand, they state that the contract signed between Raise Marketing, SL
and Factor Energía SA, it is established in Annex 8 that the agent issuing the call,
C / Jorge Juan, 6
www.aepd.es
28001 - Madrid
sedeagpd.gob.es
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When contacting the recipient, they will identify themselves with the name of the
teleshopping (not of Factor Energía, SA) and in the Fourth clause it is established, as a
of the "Agent Obligations", the Agent's obligation to consult a file
updated exclusion of the sending of commercial communications ("Robinson List")
and the prohibition of making communications to those who are registered in it.
It adds that, on July 2, 2020, Raise Marketing, SL, recognized Factor
Energía SA, the wrongdoing of a collaborator of yours who, according to what they indicate, did not comply
with the internal protocols and used a different database and that it had
obtained the data from a public domain where the telephone number of the
claimant.
Finally, Factor Energía, SA, states that Raise Marketing, SL has
acknowledged in writing their responsibility in the denounced facts. Attach the
cited document.
THIRD: On September 17, 2020, the Director of the Spanish Agency
of Data Protection agreed to initiate a sanctioning procedure to the claimed, by the
alleged violation of Article 48.1.b) of the LGT, typified in Article 78.11 of the
LGT (minor offense).
Said agreement was notified through the Notification Service Support
Electronic and Enabled Address (Notific @ platform) to the claimed, including
as not withdrawn on September 29, 2020.
FOURTH: Formally notified of the initiation agreement, the one claimed at the time of the
This resolution has not submitted a brief of allegations, so it is
application of the provisions of article 64 of Law 39/2015, of October 1, of the
Common Administrative Procedure of Public Administrations, which in its
section f) establishes that in case of not making allegations within the established period
on the content of the initiation agreement, it may be considered a proposal for
resolution when it contains a precise pronouncement about the responsibility
imputed, by which a Resolution is issued.
In view of all the actions, by the Spanish Agency for Data Protection
In this proceeding, the following are considered proven facts,
ACTS
FIRST: The claimant is listed on the Robinson List. However, it receives
unwanted commercial calls from the claimed party.
SECOND: The company that made the call to the claimant was Raise Marketing,
SL, with whom Factor Energía, SA has entered into an agency contract in
teleshopping mode.
THIRD: The contract signed between Raise Marketing, SL and Factor Energía SA, is
establishes in Annex 8, that the agent issuing the call, when contacting the
recipient, will be identified with the name of the teleshopping company (not of Factor
Energía, SA) and the Fourth clause establishes, as one of the “Obligations of the
Agent ”, the Agent's obligation to consult an updated file of exclusion of the
C / Jorge Juan, 6
www.aepd.es
28001 - Madrid
sedeagpd.gob.es
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sending commercial communications ("Robinson List") and the prohibition to carry out
communications to those who are registered in it.
FOURTH: On July 2, 2020, Raise Marketing, SL, recognized Factor Energía
SA, the wrongdoing of a collaborator of yours who, according to what they indicate, did not comply with the
internal protocols and used a different database and that it had obtained the
data from a public domain where the claimant's telephone number was located.
FIFTH: Factor Energía, SA, states that Raise Marketing, SL has recognized
in writing their responsibility in the denounced facts. Attach the document
aforementioned.
FOUNDATIONS OF LAW
I
In accordance with the provisions of article 84.3) of Law 9/2014, of 9
May, General of Telecommunications (LGT), the competition to resolve the
This Penalty Procedure corresponds to the Director of the Agency
Spanish Data Protection.
II
In the present case, it has been proven that the claimant is included in the
Robinson List.
It is especially important to note that the person in charge of the
treatment I use your list of people to call without consulting the Robinson List,
Separating from what is indicated in the contract signed with the person responsible for the treatment.
In this sense, in accordance with article 33.2 of the LOPDGDD that states:
"The person in charge of the treatment and not the manager who
in your own name and without evidence that you act on behalf of another, establish
relations with those affected even when there is a contract or legal act with the
content set out in article 28.3 of Regulation (EU) 2016/679. This forecast does not
will be applicable to those in charge of the treatment carried out within the framework of the
public sector procurement legislation.
The person responsible for the treatment will also be considered
appearing as manager, use the data for their own purposes ”.
From the foregoing, it follows that the defendant is fully responsible for the
treatment, since although he appears as the person in charge, he used the claimant's data
for your own purposes.
The facts exposed (the violation of the right of opposition), supposes the
commission by the complained party of an infraction of article 48.1.b) of the LGT Law,
included in its Title III, which states that: "Regarding data protection
personal data and privacy in relation to subscriber directories, end users
C / Jorge Juan, 6
www.aepd.es
28001 - Madrid
sedeagpd.gob.es
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of electronic communications services will have the following rights: (…)
b) To oppose receiving unwanted calls for commercial communication purposes
that are carried out through systems other than those established in the previous letter and
be informed of this right ” ,
Although, the aforementioned article does not configure such a right, so we must go to
the data protection regulations in which the right of opposition is regulated:
Article 21 of the RGPD, (Regulation (EU) 2016/679, of the European Parliament and of the
Council, of 04/27/2016, regarding the Protection of Individuals in what
Regarding the Processing of Personal Data and the Free Circulation of this Data) and
Article 23 of the LOPDGDD (Organic Law 3/2018, of December 5, on Protection
of Personal Data and Guarantee of Digital Rights).
This offense is classified as "minor", in article 78.11) of
said norm, which considers as such: “The breach of the obligations of
public service, public obligations and violation of the
rights of consumers and end users as established in Title III
of the Law and its implementing regulations ” , which may be sanctioned with a fine of up to
€ 50,000, in accordance with article 79.d) of the aforementioned LGT.
III
In accordance with the indicated precepts, in order to set the amount of the
sanction to be imposed in the present case, it is considered that the sanction should be
impose in accordance with the following criteria established in article 80.1) and 2) of
the LGT:
- The cessation of the infringing activity, previously or during the processing of the ex-
sanctioning petition (section g).
- The consideration of the economic situation of the offender, (point 2).
After the evidence obtained in the preliminary investigation phase,
considers that the penalty to be imposed should be graduated in the amount of € 1,500 (one thousand
five hundred euros).
Therefore, in accordance with the applicable legislation and the criteria of
graduation of the sanctions whose existence has been accredited, the Director of the
Spanish Agency for Data Protection RESOLVES:
FIRST: IMPOSE RAISE MARKETING, SL, with NIF B67543355, for a
violation of Article 48.1.b) of the LGT, typified in Article 78.11 of the LGT
(minor offense), a fine of € 1,500 (one thousand five hundred euros).
SECOND: NOTIFY this resolution to RAISE MARKETING, SL
THIRD: Warn the sanctioned person that the sanction imposed by a
Once this resolution is enforceable, in accordance with the provisions of the
art. 98.1.b) of Law 39/2015, of October 1, on Administrative Procedure
Common of Public Administrations (hereinafter LPACAP), within the payment period
C / Jorge Juan, 6
www.aepd.es
28001 - Madrid
sedeagpd.gob.es
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voluntary established in art. 68 of the General Collection Regulations, approved
by Royal Decree 939/2005, of July 29, in relation to art. 62 of Law 58/2003,
of December 17, by means of their entry, indicating the NIF of the sanctioned person and the number
of procedure that appears in the heading of this document, in the account
restricted number ES00 0000 0000 0000 0000 0000 , opened in the name of the Agency
Spanish Data Protection Agency in the bank CAIXABANK, SA. In case
Otherwise, it will be collected in the executive period.
Notification received and once executive, if the execution date is found
Between the 1st and the 15th of each month, both inclusive, the deadline to make the payment
volunteer will be until the 20th 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 50 of the LOPDGDD, this
Resolution will be made public once it has been notified to the interested parties.
Against this resolution, which puts an end to the administrative procedure in accordance with art. 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
count 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.
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 expresses his intention to file contentious-administrative appeal.
If this is the case, the interested party must formally communicate this fact through
letter addressed to the Spanish Agency for Data Protection, presenting it through
of the Electronic Registry of the Agency [https://sedeagpd.gob.es/sede-electronica-
web /], or through any of the other records provided for in art. 16.4 of the
cited Law 39/2015, of October 1. You must also transfer to the Agency the
documentation proving the effective filing of the contentious appeal-
administrative. If the Agency was not aware of the filing of the appeal
contentious-administrative within a period of two months from the day following the
notification of this resolution would terminate the precautionary suspension.
938-300320
Mar Spain Martí
Director of the Spanish Agency for Data Protection
C / Jorge Juan, 6
www.aepd.es
28001 - Madrid
sedeagpd.gob.es