APD/GBA (Belgium) - 09/2023

APD/GBA - 09/2023
Authority:	APD/GBA (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 12(3) GDPR Article 17(1) GDPR Article 58(2) GDPR
Type:	Complaint
Outcome:	Upheld
Started:
Decided:	09.02.2023
Published:	10.02.2023
Fine:	n/a
Parties:	n/a
National Case Number/Name:	09/2023
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	Dutch
Original Source:	Decision 09/2023 (in NL)
Initial Contributor:	Matthias Smet

The DPA determined that the controller violated Articles 12(3), 12(4) and 17(1) GDPR by not taking the necessary steps to remove the data subject's e-mail from its mailing list. The DPA ordered the controller to comply with the erasure request pursuant of Article 58(2)(c) GDPR.

English Summary

Facts

As a result of receiving unsolicited advertising by e-mail sent by the controller, the data subject requested the controller on 9 November 2022 and 2 weeks later again to remove his e-mail address from its address list. Notwithstanding the controller's answer announcing necessary steps would have been taken in order to remove the e-mail address from the list, the data subject received unsolicited advertising by e-mail on 16 January 2023. The data subject filed a complaint with the Belgian Data Protection Authority claiming lack of appropriate action following receipt of the erasure request.

Holding

The complaint showed that the data subject had correctly exercised his right to erasure. Despite the controller's announcement, according to which appropriate measure would have been taken to remove the data subject's email address from its marketing list, no concrete follow-up action had been taken. In fact, the data subject had received another marketing email. The DPA concluded the controller violated Article 12(3) GDPR, 12(4) GDPR and Article 17(1) GDPR and ordered it to comply with the erasure request within a timeframe of 30 days from the notification of its decision pursuant of Article 58(2)(c) GDPR.

Comment

This was a preliminary (prima facie) decision according to Article 95 WOG, prior to a decision on the merits. Taking into account the importance, the decision has been published on the website of the Data Protection Authority while it is not necessary for this to include the identification data of the parties.

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English Machine Translation of the Decision

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

1/6







                                                                                   Litigation room



                                                         Decision 09/2023 of February 9, 2023





File number : DOS-2023-00339



Subject : Refusal to comply with the data erasure request




The Disputes Chamber of the Data Protection Authority, composed of Mr Hielke Hijmans,

sole chairman;



Having regard to Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016 on

the protection of natural persons with regard to the processing of personal data and
on the free movement of such 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 WOG;


Having regard to the rules of internal order, 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;




has taken the following decision regarding:

                                                                                                   .
The complainant: Mr X, hereinafter referred to as “the complainant”; .

                                                                                                   .

The controller: Y, hereinafter “the controller” Decision 09/2023 - 2/6



I. Factual Procedure




    1. On 16 January 2023, the complainant filed a complaint with the Data Protection Authority against the

         controller.


    2. The object of the complaint concerns the lack of appropriate action on the part of the

         controller at the request of the complainant to erase his

         personal data, in particular his email address […], which is provided by the

         the controller is used to send the customer unsolicited advertising.


         The complainant requested that data be erased on 9 November 2022 and again

         on November 14, 2022. Notwithstanding the confirmation of the

         controller that the necessary action is taken, the complainant will be informed again on 16

         January 2023 unsolicited advertising by e-mail from the controller.


    3. On January 31, 2023, the complaint will be declared admissible by the First Line Service on the basis of

         Articles 58 and 60 WOG and the complaint is based on art. 62, §1 WOG transferred to the

         Litigation room.





II. Motivation


    4. The Disputes Chamber determines on the basis of the documents that support the complaint that the complainant is entitled

         has exercised on data erasure, but the controller has failed to do so

         to follow it up. As a result, the controller has acted in violation of

         Article 12.3 and 12.4 GDPR, as well as Article 17.1 GDPR. 2





1
 Article 12 GDPR
[…]

3. The controller shall provide the data subject without undue delay and in any event within one month of receipt of the request
information on the action taken on the request under Articles 15 to 22. Depending on the complexity of the
requests and the number of requests, that period may be extended by a further two months if necessary. The
The controller shall inform the data subject of such an extension within one month of receipt of the request.
When the data subject submits his request electronically, the information shall be provided electronically if possible, unless the data subject
otherwise requests.

4. Where the controller does not comply with the request of the data subject, it shall inform the data subject without undue delay and
no later than one month after receipt of the request why the request has not been acted upon, and informs him about this
the possibility to lodge a complaint with a supervisory authority and to appeal to the courts.
[…]

2Article 17 GDPR
1. The data subject shall have the right of the controller to erase his data without undue delay
obtain personal data and the controller is obliged to erase personal data without undue delay

when one of the following applies:
a) the personal data are no longer necessary for the purposes for which they were collected or otherwise processed;

(b) the data subject withdraws the consent on which the processing is based in accordance with point (a) of Article 6(1) or point (a) of Article 9(2);
and there is no other legal basis for the processing; Decision 09/2023 - 3/6




    5. The Disputes Chamber is of the opinion that on the basis of the above analysis it should be

        concluded that the controller has committed a breach of the provisions of the

        GDPR was committed, which justifies taking a

        decision pursuant to Article 95, §1, 5° WOG, more specifically the controller in

        order to comply with the exercise by the bearer of his right to data erasure

        (Article 17.1 GDPR) and this in particular in view of the documents submitted by the complainant

        it appears that the complainant has requested the controller to proceed with the

        deletion of his data, without appropriate action being taken by the

        controller.


    6. The present decision is a prima facie decision taken by the Litigation Chamber

        in accordance with article 95 WOG on the basis of the complaint submitted by the complainant, in the context of
                                                                 3
        the 'procedure prior to the decision on the merits' and no decision on the merits of the

        Disputes Chamber within the meaning of Article 100 WOG.

    7. The purpose of this decision is to inform the controller of the

        fact that it may have committed a breach of the provisions of the GDPR and put it in the

        possibility to still comply with the aforementioned provisions.


    8. However, if the controller does not agree with the contents of this

        prima facie decision and considers that it may leave factual and/or legal arguments

        funds that could lead to a different decision, this can be done via the e-mail address

        litigationchamber@apd-gba.be to submit a request for consideration of the merits of the case to the

        Litigation Chamber and this within the period of 30 days after notification of this decision. The

        enforcement of this decision will, if necessary, take place during the aforementioned period

        suspended.


















c) the data subject objects to the processing in accordance with Article 21(1) and there are no overriding compelling
legitimate grounds for the processing, or the data subject objects to the processing in accordance with Article 21(2);
d) the personal data have been processed unlawfully;

e) the personal data must be erased to comply with a legal requirement laid down in Union or Member State law
obligation incumbent on the controller;
f) the personal data have been collected in connection with the offer of information society services as referred to in Article 8 paragraph
1.

3Section 3, Subsection 2 WOG (Articles 94 to 97 inclusive). Decision 09/2023 - 4/6




     9. In the event of a continuation of the handling of the case on the merits, the Disputes Chamber

          the parties pursuant to Articles 98, 2° and 3° in conjunction with Article 99 WOG invite their

          submit defenses as well as attach any documents they deem useful to the file. The

          the present decision will, if necessary, be definitively suspended.



     10. The Disputes Chamber points out for the sake of completeness that a treatment on the merits of the case is possible
                                                                                                       4
          lead to the imposition of the measures referred to in Article 100 WOG.


     11. Finally, the Disputes Chamber points out the following:


     12. If one of the two parties wishes to make use of the possibility to consult and

          copying the file (art. 95, §2, 3° WOG), he must turn to the secretariat

          of the Disputes Chamber, preferably via litigationchamber@apd-gba.be, in order to make an appointment

          to capture.


     13. If a copy of the file is requested, the documents will be sent electronically if possible

                                                        5
          or otherwise delivered by regular mail.

























4
 1° to dismiss a complaint;
 2° to order the exclusion of prosecution;
 3° order the suspension of the judgment;
 4° propose a settlement;
 5° formulate warnings and reprimands;
 6° order that the data subject's requests to exercise his rights be complied with;
 7° order that the data subject be informed of the security problem;

 8° order that the processing be temporarily or permanently frozen, restricted or prohibited;
 9° order that the processing be brought into compliance;
 10° the rectification, restriction or deletion of data and the notification thereof to the recipients of the data
command;
 11° to order the withdrawal of the accreditation of certification bodies;
 12° to impose penalty payments;
 13° to impose administrative fines;

 14° order the suspension of cross-border data flows to another State or an international institution;
 15° transfer the file to the Public Prosecutor's Office of the Crown Prosecutor in Brussels, who informs it of the follow-up to the
file is given;
 16° decide on a case-by-case basis to publish its decisions on the website of the Data Protection Authority.
5
  Due to the extraordinary circumstances due to COVID-19, the possibility of collection at the secretariat of the
Dispute room NOT provided. In addition, all communication takes place electronically in principle. Decision 09/2023 - 5/6



III. Publication of the decision




    14. Given the importance of transparency with regard to decision-making by the

       Litigation Chamber, this decision will be published on the website of the
       Data Protection Authority. However, it is not necessary for this to include the identification data

       of the parties are disclosed directly.






   FOR THESE REASONS,

   the Disputes Chamber of the Data Protection Authority decides, subject to the
   submission of a request by the controller for treatment on the merits

   in accordance with Article 98 et seq. WOG, to:



   - on the basis of Article 58.2, c) GDPR and Article 95, § 1, 5 ° WOG, the controller

      order that the data subject's request to exercise his rights be complied with, more
      stipulates the right to erasure (article 17.1 GDPR), and to delete the

      concerning personal data, and this within a period of 30 days from the

      notification of this decision;



   - to order the controller to notify the Data Protection Authority

      (Dispute Chamber) by e-mail within the same term of the result
      of this decision via the e-mail address litigationchamber@apd-gba.be; and



   - in the absence of timely implementation of the above by the

      controller, to handle the case ex officio on the merits in accordance with

      articles 98 et seq. WOG. Decision 09/2023 - 6/6




Pursuant to Article 108, § 1 of the WOG, within a period of thirty days from the notification

this decision may be appealed to the Marktenhof (Brussels Court of Appeal), with the

Data Protection Authority as defendant.


Such an appeal may be lodged by means of an inter partes petition that the in art

1034terofthe Judicial Codemustcontainenumeratedenumerated .Theapplicationon 6


contradictions must be submitted to the Registry of the Market Court in accordance with Article
                                     7
1034quinquiesvanhetGer.W. , or via the Deposit Information System of Justice (article 32ter of

the Ger.W.).









(Get.) Hielke Hijmans

Chairman of the Litigation Chamber









































6 The petition states under penalty of nullity:

 1° the day, month and year;
 2° the surname, first name, place of residence of the applicant and, where applicable, his capacity and his national register or
     enterprise number;
 3° the surname, first name, place of residence and, where appropriate, the capacity of the person to be summoned;
 4° the object and brief summary of the means of the claim;
 5° the court before which the action is brought;
 6° the signature of the applicant or his lawyer.

7 The petition with its annex, in as many copies as there are parties involved, is sent by registered letter to the
clerk of the court or deposited with the clerk of the court.