AEPD (Spain) - PS/00263/2021

AEPD (Spain) - PS/00263/2021
Authority:	AEPD (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 21 LSSI
Type:	Complaint
Outcome:	Upheld
Started:
Decided:	20.08.2021
Published:	23.08.2021
Fine:	3,000 EUR
Parties:	NATURAL LOGISTICS, S.L.
National Case Number/Name:	PS/00263/2021
European Case Law Identifier:	n/a
Appeal:	n/a
Original Language(s):	Spanish
Original Source:	AEPD (in ES)
Initial Contributor:	Carmen Villarroel

The Spanish DPA fined a logistics company €1,800 for sending an individual unsolicited commercial communications after they had exercised their right to object.

English Summary

Facts

The data subject filed a complaint with the Spanish DPA (AEPD) after receiving unsolicited commercial communications from the logistics company Natural Logistics S.L. The complainant continued to receive several commercial e-mails, after exercising their right to object. Although the company answered that they had deleted the data subjects mail-address from the database, they continued to send commercial mails to that address.

Holding

The AEPD considered that the company infringed Article 21 of the Spanish law regulating cookies and unsolicited commercial communications (LSSI). This law prohibits companies from sending unwanted or unsolicited commercial communications as conducted by the company. Therefore, the DPA fined the company €3,000, which was reduced to €1,800 for an early payment and the acknowledgement of responsibility.

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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.: PS / 00263/2021


       RESOLUTION OF TERMINATION OF THE PROCEDURE BY PAYMENT

                                   VOLUNTARY

Of the procedure instructed by the Spanish Agency for Data Protection and based on

to the following

                                 BACKGROUND

FIRST: On June 24, 2021, the Director of the Spanish Agency for

Data Protection agreed to initiate a sanctioning procedure against NATURAL
LOGISTICS, S.L. (hereinafter, the claimed party), through the Agreement that is
transcribe:

<<






Procedure No.: PS / 00263/2021







           AGREEMENT TO START THE SANCTIONING PROCEDURE



Of the actions carried out by the Spanish Agency for Data Protection and in

based on the following



                                 BACKGROUND




FIRST: On September 16, 2020, you entered this Agency
Spanish Data Protection (hereinafter AEPD) written claim, to which

It was assigned as file number E / 08277/2020.






C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 2/10








Said brief was presented for an alleged violation of article 21 of the LSSI,
for the following circumstances:




A.A.A. has filed a claim with the AEPD against NATURAL LOGISTICS,

S.L. for the non-consensual referral of commercial communications to your address
electronic mail: *** EMAIL. 1.




The claim shows that you have received several communications
commercial of the claimed entity and that has exercised its right of opposition before
the same so as not to continue receiving them. On June 4, he received a response from the entity

claimed in which they informed him that "we will remove him from our list right now."



However, and despite said response from the respondent, the claimant has continued

receiving your commercial communications.



SECOND: In accordance with the mechanism prior to the admission for processing of the

claims that are made before the AEPD, provided for in article 65.4 of the Law
Organic 3/2018, of December 5, Protection of Personal Data and guarantee of

digital rights (hereinafter, LOPDGDD), which consists of transferring the
same to the Data Protection Delegates appointed by those responsible or
those in charge of the treatment, or to them when they have not designated them, and with the

purpose indicated in the aforementioned article, the claim was transferred to
NATURAL LOGISTICS, S.L. (hereinafter, the claimed party) to proceed to
his analysis and gave a response within a month, which he verified by writing of

date of entry into this Agency of November 11, 2020.



On November 19, he entered this Agency, at the request of the

itself, written by the claimed entity, attaching the answer sent to the party
claimant in response to your claim.




THIRD: On November 24, 2020, after analyzing the documentation that
was in the file, a resolution was issued by the Director of the Spanish Agency

of Data Protection, agreeing the non-admission to processing of the claim. The
resolution was notified to the now appellant, on January 7, 2021,
according to notice of receipt that appears in the file.


C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 3/10











FOURTH: On February 8, 2021, the appellant files an appeal
optional replacement through the Electronic Registry of the AEPD, against the
resolution relapsed in file E / 08277/2020, in which it shows its

disagreement with the contested resolution, arguing that although the entity
The respondent stated in his response to this Agency that he had deleted the email from the

claimant dated October 15, 2020, has received 10 emails since that date
more advertising. Provide a copy of three emails received on dates 15 and 19
December 2020 and January 4, 2021.




FIFTH: As new relevant documentation has been provided for the purposes of the
raised, the Director of the Spanish Data Protection Agency resolves

ESTIMATE the appeal for reconsideration filed by A.A.A. against the resolution of this
Agency issued on November 24, 2020, by which it was agreed that the

Admission to processing of the claim related to NATURAL LOGISTICS, S.L. and
open the following sanctioning procedure PS / 00263/2021.






                                       FACTS




FIRST: A.A.A. (hereinafter, the claimant) dated February 8, 2021
filed a claim with the Spanish Data Protection Agency.




The claim is directed against NATURAL LOGISTICS, S.L. with CIF B84147065 (in
forward, the claimed one).




The reasons on which the claim is based are that, although the defendant has
affirmed before this Agency that he had deleted his email on October 15,

2020, has continued to receive new advertising emails.




Along with the claim, the claimant provides a copy of 3 messages received on the date
after October 15, 2020.




C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 4/10











SECOND: In view of the facts denounced in the claim and the
documents provided by the claimant, the Subdirectorate General for Inspection of
Data proceeded to carry out preliminary investigation actions for the

clarification of the facts in question, by virtue of the powers of investigation
granted to the control authorities in article 57.1 of the Regulation (EU)

2016/679 (General Data Protection Regulation, hereinafter RGPD), and of
in accordance with the provisions of Title VII, Chapter I, Second Section, of the Law
Organic 3/2018, of December 5, Protection of Personal Data and guarantee of

digital rights (hereinafter LOPDGDD).



As a result of the investigative actions carried out, it is verified that the

responsible for the treatment is the claimed one.






                            FOUNDATIONS OF LAW




In accordance with the provisions of art. 43.1, second paragraph, of the Law
34/2002, of July 11, on Services of the Information Society and Commerce
Electronic, (LSSI), is competent to initiate and resolve this Procedure

Sanctioner, the Director of the Spanish Agency for Data Protection.




                                             II



In the present case, the claimant indicates that although the claimed entity has

affirmed before this Agency that he had deleted the email address of the
claimant, on October 15, 2020, has received a new advertising email and
another three more, after this date.




Sending advertising emails without the consent of the recipient,

could constitute an infringement of the provisions of article 21 of the LSSI, by establishing
this article, that:




C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 5/10








"1. The sending of advertising or promotional communications by
email or other equivalent electronic means of communication that

had not previously been requested or expressly authorized by the
recipients of the same. 2. The provisions of the previous section shall not be
application when there is a prior contractual relationship, provided that the provider

had obtained the recipient's contact details lawfully and used them
for sending commercial communications regarding products or services of your
own company that are similar to those that were initially the subject of

contracting with the client. In any case, the provider must offer the recipient the
possibility of opposing the processing of your data for promotional purposes through

a simple and free procedure, both at the time of data collection
as in each of the commercial communications that I address. When the
communications had been sent by email, said medium must

necessarily consist of the inclusion of an email address or another
valid email address where this right can be exercised, being prohibited
sending communications that do not include said address. "




The aforementioned offense is classified as minor in art. 38.4.d) of bliss
standard, which qualifies as such, “Sending commercial communications by mail

electronic or other equivalent electronic means of communication when in said
shipments do not meet the requirements established in article 21 and do not constitute
Serious offense".




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

graduation in article 40 of the same rule.



After the evidence obtained, and without prejudice to what results from the instruction,

considers that the sanction to be imposed should be adjusted in accordance with the following
aggravating criteria, established in art. 40 of the LSSI:




    - The existence of intentionality, an expression that must be interpreted as
        equivalent to degree of guilt according to the Judgment of the
        National Court of 11/12/07 relapse in Appeal no. 351/2006,

        corresponding to the entity denounced the determination of a system of
        obtaining the informed consent that conforms to the mandate of the LSSI.




C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 6/10








Based on these criteria, it is deemed appropriate to impose on the claimed entity
a penalty of 3,000 euros (three thousand euros), for the violation of article 21 of the LSSI,

regarding the sending of commercial communications through email without the
consent of the affected party. In light of the foregoing, by the Director of

the Spanish Agency for Data Protection



                                     HE REMEMBERS:




START: SANCTIONING PROCEDURE for the NATURAL LOGISTICS entity,
S.L. with CIF B84147065, for violation of article 21 of the LSSI, for sending

commercial communications, via email, without the consent of the interested party.



APPOINT: As Instructor to B.B.B., and Secretary to C.C.C. , if applicable, to, indicating

that any of them may be challenged, where appropriate, in accordance with the provisions of
Articles 23 and 24 of Law 40/2015, of October 1, on the Legal Regime of the Sector
Public (LRJSP).




INCORPORATE: To the sanctioning file, for evidentiary purposes, the claim

filed by the claimant and his documentation, all of them part of this
Administrative file.




WHAT: For the purposes provided for in art. 64.2 b) of Law 39/2015, of October 1, on
Common Administrative Procedure of Public Administrations, the sanction that
could correspond it would be 3,000, (one thousand five hundred euros).




NOTIFY: The present agreement to initiate the sanctioning file to the entity,
NATURAL LOGISTICS, S.L. with CIF B84147065 granting a hearing period

ten business days to formulate the allegations and present the evidence that
consider convenient.




If within the stipulated period it does not make allegations to this initiation agreement, the same
may be considered a resolution proposal, as established in article
64.2.f) of Law 39/2015, of October 1, on the Common Administrative Procedure of

the Public Administrations (hereinafter, LPACAP).

C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 7/10










In accordance with the provisions of article 85 of the LPACAP, in the event that the

penalty to be imposed would be a fine, you may recognize your responsibility within the
term granted for the formulation of allegations to the present initiation agreement; it

which will entail a reduction of 20% of the penalty to be imposed in
the present procedure, equivalent in this case to 600 euros. With the application of
this reduction, the penalty would be set at 2,400 euros, resolving the

procedure with the imposition of this sanction.



In the same way, you may, at any time prior to the resolution of this

procedure, carry out the voluntary payment of the proposed sanction, which
will mean a reduction of 20% of the amount thereof, equivalent in this case
to 600 euros. With the application of this reduction, the sanction would be established in

2,400 euros and its payment will imply the termination of the procedure.




The reduction for the voluntary payment of the penalty is cumulative to the corresponding
apply for the acknowledgment of responsibility, provided that this acknowledgment
of the responsibility is made manifest within the period granted to formulate

allegations at the opening of the procedure. The voluntary payment of the referred amount
in the preceding paragraph, it may be done at any time prior to the resolution. On
In this case, if both reductions should be applied, the amount of the penalty would be

set at 1,800 euros (nine hundred euros).



In any case, the effectiveness of either of the two mentioned reductions will be

conditioned to the withdrawal or resignation of any action or remedy in
administrative against the sanction.




If you choose to proceed to the voluntary payment of any of the amounts indicated
previously, you must make it effective by entering account number ES00

0000 0000 0000 0000 opened in the name of the Spanish Agency for the Protection of
Data in Banco CAIXABANK, S.A., indicating in the concept the number of
reference to the procedure in the heading of this document and the

cause of reduction of the amount to which it is accepted. Likewise, you must send the
Proof of admission to the Subdirectorate General of Inspection to continue with the
procedure in accordance with the amount entered.





C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 8/10








The procedure will have a maximum duration of nine months from the date of
date of the initiation agreement or, where appropriate, the draft initiation agreement.

After this period, its expiration will occur and, consequently, the file of
performances; in accordance with the provisions of article 64 of the LOPDGDD.




Finally, it is pointed out that in accordance with the provisions of article 112.1 of the LPACAP,
There is no administrative appeal against this act.




Mar Spain Martí

Director of the Spanish Agency for Data Protection.






>>



SECOND: On August 12, 2021, the claimed party has made the payment
of the sanction in the amount of 1,800 euros making use of the two reductions
provided for in the Initiation Agreement transcribed above, which implies the
acknowledgment of responsibility.


THIRD: The payment made, within the period granted to formulate allegations to
the opening of the procedure, entails the waiver of any action or appeal in the process
administrative against the sanction and the recognition of responsibility in relation to
the facts to which the Initiation Agreement refers.



                            FOUNDATIONS OF LAW

                                            I


By virtue of the powers that article 58.2 of the RGPD recognizes to each authority of
control, and as established in art. 47 of Organic Law 3/2018, of 5 of
December, Protection of Personal Data and guarantee of digital rights (in
hereinafter LOPDGDD), the Director of the Spanish Agency for Data Protection

is competent to sanction the infractions that are committed against said
Regulation; infractions of article 48 of Law 9/2014, of May 9, General
of Telecommunications (hereinafter LGT), in accordance with the provisions of the
article 84.3 of the LGT, and the offenses typified in articles 38.3 c), d) and i) and
38.4 d), g) and h) of Law 34/2002, of July 11, on services of the company of the

information and electronic commerce (hereinafter LSSI), as provided in article
43.1 of said Law.


C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 9/10








                                            II

Article 85 of Law 39/2015, of October 1, on Administrative Procedure

Common of Public Administrations (hereinafter, LPACAP), under the rubric
"Termination of sanctioning procedures" provides the following:

"1. Initiated a sanctioning procedure, if the offender acknowledges his responsibility,
the procedure may be resolved with the imposition of the appropriate sanction.


2. When the sanction is solely of a pecuniary nature or it is possible to impose a
pecuniary sanction and other non-pecuniary sanction but the
inadmissibility of the second, the voluntary payment by the presumed responsible, in
any time prior to the resolution, will imply the termination of the procedure,
except in relation to the replacement of the altered situation or to the determination of the

compensation for damages caused by the commission of the offense.

3. In both cases, when the sanction is solely of a pecuniary nature, the
competent body to resolve the procedure will apply reductions of, at least,
20% on the amount of the proposed sanction, these being cumulative among themselves.
The aforementioned reductions must be determined in the notice of initiation

of the procedure and its effectiveness will be conditional on the withdrawal or resignation of
any action or appeal in administrative proceedings against the sanction.

The percentage of reduction foreseen in this section may be increased
regulations. "


In accordance with the above, the Director of the Spanish Agency for the Protection of
Data
RESOLVES:


FIRST: DECLARE the termination of procedure PS / 00263/2021, of
in accordance with the provisions of article 85 of the LPACAP.

SECOND: NOTIFY this resolution to NATURAL LOGISTICS, 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.

Against this resolution, which puts an end to the administrative procedure as prescribed by
the art. 114.1.c) of Law 39/2015, of October 1, on Administrative Procedure
Common of Public Administrations, interested parties may file an appeal

administrative litigation 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.




C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es 10/10










                                                                                                   936-160721

Mar Spain Martí
Director of the Spanish Agency for Data Protection










































































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