AEPD (Spain) - PS/00372/2021

AEPD - PS/00372/2021
Authority:	AEPD (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 12 GDPR Article 17 GDPR Article 60 GDPR Article 83(5) GDPR
Type:	Complaint
Outcome:	Other Outcome
Started:
Decided:
Published:
Fine:	n/a
Parties:	GLOVOAPP
National Case Number/Name:	PS/00372/2021
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	English
Original Source:	European Data Protection Board: EDPB (in EN)
Initial Contributor:	Mgrd

The Spanish DPA issued a reprimand to GLOVOAPP, a food delivery service, for violating Article 12 GDPR. The company did not comply with the an erasure request on four separate occasions.

English Summary

Facts

On 6 November 2019, the data subject sent a message to GLOVOAPP, a food delivery service (controller), complaining about a function of the application that did not work properly. The data subject discovered that his home address was not covered within the scope of the data controller's riders (information which is only obtained once an account is opened and personal data entered). On 7 November 2019, the controller replied with an automatic message, informing that it had received the data subject's request and it would reply in 24 hours.

On 12 November 2019, the data subject sent another message to the controller, stating that his request was not being dealt with and reinforcing its request for the deletion of his user account. He also mentioned that the controller did not provide a Polish version of it's request form on its's website, but only provided the form in Spanish. On 13 November 2019, the data subject requested that the controller to delete all his personal data from its immediately bases and to immediately cease all processing of his personal data. On both occasions, the controller replied with an automatic message, informing that it had received the data subject's email and it would reply in 24 hours.

On an unspecified date, the data subject lodged a complaint with the Polish Data Protection Authority against the controller. On 27 April 2020, the Polish DPA transferred the complaint to the Spanish DPA as regards to the right of erasure.

The Spanish DPA rejected part of the data subject's complaint concerning the language of the forms. Its inspection services checked that it on the controller's website and Polish forms were available on the website, as long as if a Polish city is chosen as a location. After this, the Polish DPA raised the possibility to give the data subject the chance to submit evidence that the forms were only available in Spanish at the time of the submission of the complaint. They commented that they would send a letter to the data subject requesting such a remedy, and that if they did not receive a reply within 7 days, they would accept the rejection of that part of the complaint. On August 11 2020, the Spanish DPA received an email from the Polish authority, informing that no reply had been received from the data subject. As a consequence, part of the complaint relating to the forms was dismissed, which was reduced to the issue related to the exercise of the right to erasure of Article 17 GDPR.

In accordance with Article 65 (4) of Organic Law 3/2018 (Protection of Personal Data and the Guarantee of Digital Rights, hereinafter LOPDGDD), GLOVOAPP was informed of this complaint so that it could analyse it and inform the Spanish DPA within one month, of the measures taken to comply with the requirements laid down in the data protection legislation. The request, which was carried out in accordance with the rules laid down in Law 39/2015 (Common Administrative Procedure of Public Administrations, hereinafter LPACAP), was recorded on August 20, 2020.

On 18 September 2020, the Spanish DPA received a letter from GLOVOAPP in summary, stating that the data subject did not use the appropriate form provided on the data controller's web portal, application or dedicated emails to request the erasure, but by a chat with an agent of customer care service (SAC). They state that their SAC assigns an agent responsible for answering users according to the territory in which the user is located and as the data subject never order any purchase on the app, no city was assigned and could not be located. In view of the fact that it was impossible to locate the user in a particular city, the system did not transmit the requests for erasure of data to any SAC actor, and the data subject received only the response that the SAC automatically generates before an agent responsible for responding to users is assigned.

The data controller have erasured the data subject's personal data (clarify that they only had their email address, as he did not have any orders yet) and have contacted him to inform him of this, and of the retention of his data in a blocked state, inter alia, in order to defend themselves in complaints (they provided a copy of the email dated 16 September 2020). They explain that the reason for not having complied with his request was the use of an incorrect channel to exercise his right.

The data controller allegedly sent a reminder to all agents about the need to send to the Office of the Data Protection Officer all communications that may include a request for the exercise of rights, even if this request is hidden or not obvious. They have also reported to the SAC department the inconvenience related to the allocation of requests by users who have not placed orders or who have not indicated a country or address when registering in the app.

They also disagree with the data subject's argument that forms are not available in their language and also that it is necessary to open an account in order to know the geographical area of availability of service, since the coverage of mailings is accessible via a dedicated URL.

On 5 October 2020, AEPD adopted a draft decision to discontinue the proceedings. Following the process set out in Article 60 GDPR, this draft decision was submitted and communicated to the concerned supervisory authorities that they had four weeks to raise relevant and reasoned objections. The Polish DPA manifested in the sense that it considered that there was no need to discontinue the proceedings, but rather to analyse the case and issue a reprimand given that there had been an infringement of the GDPR. For its part, the Portuguese DPA comments were in the same sense, taking the view that GLOVOAPP should be penalised for an infringement of the GDPR.

On 3 September 2021, AEPD adopted a revised draft decision initiating penalty proceedings. Following the process set out in Article 60 GDPR, this revised draft decision was transmitted on 6 September 2021 and the authorities concerned were informed that they had two weeks to raise relevant and reasoned objections. The supervisory authorities concerned did not raise relevant and reasoned objections in that regard.

On 31 March 2022, AEPD initiated the penalty proceedings against GLOVOAPP, in accordance with Articles 63 and 64 of Law 39/2015, for the alleged infringement of Articles 12 and 17 GDPR, as set out in Article 83 (5) GDPR.

On 3 May 2022, AEPD received a letter and form from GLOVOAPP in which it put forward arguments on the decision to initiate the procedure, in which it stated, in summary, that they did not refused or hindered the exercise of the data subject's right to erasure for the purposes of Article 12(2) LOPDGDD, but rather that GLOVOAPP showed flexibility by deleting the data subject’s personal data immediately after receiving the complaint from AEPD, despite not being exercised through the dedicated channels. GLOVOAPP also refers to the reasons why they were unable to delete the data subject’s personal data in due time, since it was impossible to locate it in a specific territory because he had not placed an order. Consequently, it was impossible to assign his request to a specific agent of the SAC, which cannot be understood as an intention of the data controllers not to comply with the right to erasure, for the purposes of Article 74 (c) LOPDGDD. They argue and demonstrate how they comply and respect data protection rules and data subject's rights and why the closure of the proceedings is the most appropriate decision for this case, especially since it has shown clear and unequivocal flexibility by deleting his data immediately after receiving the complaint from the AEPD, despite the fact that this right has been exercised by a channel not authorised for this purpose. Moreover, because there was no intentional or negligent act or omission of any degree of negligence by them, which means, there is no essential elements and conditions necessary for the imposition of a penalty have been met.

GLOVOAPP considers that it has demonstrated to the AEPD its willingness to comply with the rules on the protection of personal data by immediately deleting the data subject’s personal data once the complaint has been forwarded by the AEPD and ensuring that users’ rights are fully satisfied at all times regardless of the channel they are exercised. GLOVOAPP considers that there is a complete absence of evidence of guilt and, consequently, a violation of the fundamental right to the presumption of innocence enshrined in the Spanish Constitution.

GLOVOAPP considers that it has been duly demonstrated that it has always acted in good faith, applying the utmost effort to comply with data protection rules in the belief that it is lawful, as this is its requirement as a controller of the personal data of data subjects and with the aim of never jeopardizing their rights and freedoms. There is therefore no clear ‘intent’ in failing to comply with the legislation in force, since it took all the necessary and appropriate actions to comply with the rules and has prudently aligned its actions with the law.

On 9 May 2022, the body conducting the penalty proceedings issued a proposal for a resolution, in which it proposed that AEPD issue a reprimand to GLOVOAPP for the infringement of Article 12 GDPR, as set out in Article 83 (5) GDPR.

Holding

The AEPD started responding to the allegations that started the penalty proceedings.

First, AEPD pointed out that GLOVOAPP has duly complied with the complainant’s request after the complaint was forwarded by AEPD, although the request was via a channel which was certainly different from that provided for by GLOVOAPP, which caused some difficulties for the company to comply with it correctly. However, the fact remains that the complainant’s request was not complied with within the time limit laid down by the GDPR. GLOVOAPP acted negligently by not providing an internal mechanism to deal with requests received through unauthorized channels and the constant monitoring in all of their channels was not being carried out or was not being carried out correctly, given that the data subject’s right was not properly respected.

Second, AEPD highlighted that although in their first draft decision they proposed to discontinue the proceeding, this decision was later reviewed because relevant and reasoned objections were raised by the Portuguese and Poland supervisory authorities. They have reached an agreement with other authorities on the assessment of the existence of an infringement on the part of GLOVOAPP, without being obliged at any time to maintain its initial position. Third, AEPD rejected all claims regarding possible nullity of the administrative act (penalty proceedings) based on lack of information to establish an infringement. AEPD agrees that there was no clear intention to breach the data protection rules, but that GLOVOAPP acted negligently by failing to provide for an internal mechanism to deal with requests concerning the exercise of rights under the legislation on the protection of personal data received by channels other than those initially provided for. In particular, in cases where the system could not assign a given SAC agent, as a specific city or territory cannot be assigned to the user, as was the case in the present case. AEPD considers that there is sufficient evidence to show that GLOVOAPP acted negligently, which determines the existence of that infringement.

The data subject requested GLOVOAPP, at least on four occasions, to have his personal data deleted and although he did not use the appropriate form for that purpose, he had contacted a customer service agent via a chat. GLOVOAPP did not comply with the request in a timely manner.

AEPD stressed that GLOVOAPP should have mechanisms in place to allow data subjects to exercise their rights in a simple way and to provide them with full satisfaction in the shortest possible time. The fact that the request was made through an alternative mechanism, such as a chat, should not be a reason for the controller to fail to comply with the request. Based on that, the facts are considered to constitute an infringement of Articles 12 and 17 GDPR and Article 12 LOPDGDD.

Violations of Article 12 GDPR, can result in administrative fines set in Article 83 GDPR. In Spain, actions or behaviors that contravene the GDPR or the Spanish LOPDGDD constitute infringements under Article 71 of the Spanish LOPDGDD.

AEPD considered GLOVOAPPs conduct as a minor infringement under Article 83(2) GDPR due to being a one-off error that has already been corrected and has no similar records.

As a result, AEPD issued a reprimand for the violation of Article 12 GDPR as set in Article 83 (5) GDPR and no administrative fine was imposed.

Comment

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English Machine Translation of the Decision

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

File No: PS/00372/2021
IMI Reference: A56ID 122865- Case Register 128401
FINAL DECISION ON PENALTY PROCEEDINGS
From the actions taken by the Spanish Data Protection Agency and based on the
following
BACKGROUND
FIRST: (hereinafter the complainant) lodged a complaint with the
Polish Data Protection Authority. The complaint is directed against GLOVOAPP23, S..
L. with VAT B66362906 (‘GLOVOAPP’). The grounds on which the complaint is based
are as follows:
Having discovered that his home was not within the scope of GLOVOAPP’s riders
(information which is only obtained once an account is opened and personal data
entered), the complainant requested the deletion of his account and personal data, on
two occasions with a difference of 5 days, but did not receive a reply. In addition, the
forms available on the Glovo app for the revocation of consent are available only in
Spanish, not in English or Polish.
In addition to the complaint, he provides:
— Copy of an email sent on 7 November 2019 at 0.10 hrs from
liveops.comms@glovoapp.com to , with the following
message: “Thank you for contacting Glovo! We have just collected your message. We
will respond to it in 24 hours. Thank you for your patience during this waiting period”.
This email responds to a message dated 6 November 2019 at 23: 10 in which it is claimed
that the delivery area is too small.
— Copy of an email sent on 12 November 2019 at 8:56 hrs from
liveops.comms@glovoapp.com to , with the following
message: “Thank you for contacting Glovo! We have just received your message. We
will respond to it in 24 hours. Thank you for your patience during this waiting period”.
This email responds to a message dated 12 November 2019 at 8: 56 hrs explaining that
his requests are not being dealt with. The complainant gives notice that he has already
notified the Data Protection Authority and expects his account to be deleted immediately.
— Copy of an email sent on 12 November 2019 at 9:43 hrs from the email
liveops.comms@glovoapp.com to , with the following
message: ‘Thank you for contacting Glovo! We have just received your message. We
will respond to it in 24 hours. Thank you for your patience during this waiting period”.
This email responds to a message dated 12 November 2019 at 8: 43 hrs explaining that
a week ago was sent an email requesting the deletion of his account and received no
reply, but received an information document. He also warned that he would notify the data protection authority that he did not have a request form for deletion of data in Polish,
only in Spanish.
— Copy of an email sent on 13 November 2019 at 19:39 hrs from the email
liveops.comms@glovoapp.com to , with the following
message: “Thank you for contacting Glovo! We have just received your message. We
will respond to it in 24 hours. Thank you for your patience during this waiting period”.
This email responds to a message dated 13 November 2019 at 18: 39 hrs requesting
that his personal data should be immediately no longer processed and deleted from all
databases. In addition, he requests the deletion of his account within two working days.
SECOND: On 27 April 2020, the Spanish Data Protection Agency (AEPD) received the
complaint via the Internal Market Information System (hereinafter IMI), governed by
Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25
October 2012 (the IMI Regulation), which aims to promote cross-border administrative
cooperation, mutual assistance between Member States and the exchange of
information. This complaint is forwarded to the AEPD in accordance with Article 56 of
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27/04/2016
on the protection of natural persons with regard to the processing of personal data and
on the free movement of such data (hereinafter GDPR), taking into account its crossborder nature and that this Agency is competent to act as lead supervisory authority,
given that GLOVOAPP has its registered office and main establishment in Spain.
This Agency agreed, on 18 May 2020, to be the competent authority to act as lead
supervisory authority (LSA), in accordance with Article 56 (1) GDPR, as regards the right
of erasure. However, it proposed to reject the part concerning the forms, as its inspection
services checked that the data protection forms are downloaded in the language of the
city selected on the homepage, and consequently the Polish forms are available if a
Polish city is chosen.
The proposing authority raised the possibility to give the complainant the possibility to
submit evidence that the forms were only available in Spanish at the time of the
submission of the complaint, as the findings of the AEPD contested the complainant’s
complaint at the time the check was carried out (i.e. five months after the submission of
the complaint). They commented that they would send a letter to the complainant
requesting such a remedy, and that if they did not receive a reply within 7 days, they
would accept the rejection of that part of the complaint.
On 11 August 2020, this Agency received an email from the Polish authority, informing
that no reply had been received from the complainant, and that, as a result, the part of
the complaint relating to the forms was dismissed, which was reduced to the issue related
to the exercise of the right to erasure (Article 17 GDPR).
According to the information entered into the IMI system, pursuant to Article 60 of the
GDPR, it acts as a ‘supervisory authority concerned’, in addition to the Polish data
protection authority, the supervisory authorities of Portugal, Italy and France. All of them
under Article 4 (22) GDPR, since data subjects residing in these Member States are
likely to be substantially affected by the processing at issue in these proceedings.
THIRD: In accordance with Article 65 (4) of Organic Law 3/2018 of 5 December on the
Protection of Personal Data and the Guarantee of Digital Rights (hereinafter LOPDGDD),
GLOVOAPP was informed of this complaint so that it could analyse it and inform this
Agency within one month, of the measures taken to comply with the requirements laid
down in the data protection legislation.
The request, which was carried out in accordance with the rules laid down in Law
39/2015 of 1 October on the Common Administrative Procedure of Public
Administrations (‘LPACAP’), was recorded on 20 August 2020 as stated in the
acknowledgement of receipt in the file.
On 18 September 2020, the Agency received a letter of reply stating:
• The origin of the incident lies in the fact that, contrary to what the complainant
indicates, his personal data was not requested to be erasured using the form
provided for that purpose on the web portal, but by means of a chat with an agent
of customer care service (SAC) in charge of management of orders and related
incidents. Instead of using the various visible, clear and specific channels made
available by the company, both on its website and in its application, to exercise
his personal rights, i.e. the addresses legal@glovoapp.com and
gdpr@glovoapp.com, as well as the different rights exercise forms published on
the website and accessible in the application in the ‘Contact’ section, he
requested the erasure of his data by means of an incorrect channel, not intended
for this purpose.
• They state that their SAC assigns an agent responsible for answering users
depending on the territory in which the user is located, in order to be able to reply
in the same language as that in which the request is launched. In this case, the
complainant was not assigned any city or territory since, as he had not placed an
order via the app, he could not be located on the basis of the territory. This is
why, in view of the fact that it was impossible to locate the user in a particular
city, the system did not transmit the requests for erasure of data to any SAC actor,
and the user received only the response that the SAC automatically generates
before an agent responsible for responding to users is assigned.
• Following the transfer of the complaint, they have erasured the complainant’s
personal data (clarify that they only had their email address, as he did not have
any orders), and have contacted him to inform him of this, and of the retention of
his data in a blocked state, inter alia, in order to defend themselves in complaints
(they provided a copy of the email dated 16 September 2020). They explain that
the reason for not having complied with his request was the use of an incorrect
channel to exercise his right.
• In order to avoid such incidents occurring in the future, they have sent a reminder
to all agents about the need to send to the Office of the Data Protection Officer
all communications that may include a request for the exercise of rights, even if
this request is hidden or not obvious. They have also reported to the SAC
department the inconvenience related to the allocation of requests by users who
have not placed orders or who have not indicated a country or address when
registering in the app. As long as a technical solution to the problem is not found, its staff shall monitor, manually and periodically, applications which have not
been automatically assigned to any staff member.
• They also disagree with the fact, reported by the complainant, that forms are not
available in their language, and also that it is necessary to open an account in
order to know the geographical area of availability of service, since the coverage
of mailings is accessible via a dedicated URL (https://glovoapp.com/es/map in
Spain, for example).
FOURTH: On 11 December 2020, pursuant to Article 65 of the LOPDGDD, the complaint
lodged by the complainant was declared admissible.
FIFTH: On 5 October 2020, the Director of the AEPD adopted a draft decision to
discontinue the proceedings. Following the process set out in Article 60 GDPR, this draft
decision was submitted via IMI on the same day and communicated to the concerned
supervisory authorities that they had four weeks from that date to raise relevant and
reasoned objections. Within the time limit set for that purpose, the Polish supervisory
authority submitted its relevant and reasoned objections for the purposes of Article 60 of
the GDPR, in the sense that it considered that there was no need to discontinue the
proceedings but rather to analyse the case and issue a reprimand given that there had
been an infringement of the GDPR. For its part, the Portuguese supervisory authority
submitted its relevant and reasoned objections in the same sense, taking the view that
GLOVOAPP should be penalised for an infringement of the GDPR.
SIXTH: On 3 September 2021, the Director of the AEPD adopted a revised draft decision
initiating penalty proceedings. Following the process set out in Article 60 of the GDPR,
this revised draft decision was transmitted via IMI on 6 September 2021 and the
authorities concerned were informed that they had two weeks from that time to raise
relevant and reasoned objections. Within the period for that purpose, the supervisory
authorities concerned did not raise relevant and reasoned objections in that regard, so
that all the supervisory authorities are deemed to agree with and are bound by that
revised draft decision, in accordance with Article 60(6) GDPR.
SEVENTH: On 31 March 2022, the Director of the Spanish Data Protection Agency
decided to initiate penalty proceedings against GLOVOAPP, in accordance with Articles
63 and 64 of Law 39/2015 of 1 October on the Common Administrative Procedure of
Public Administrations (‘the LPACAP’), for the alleged infringement of Article 12 of the
GDPR, in conjunction with Article 17 of the GDPR, as set out in Article 83 (5) of the
GDPR.
The initial agreement was notified in accordance with the rules laid down in the LPACAP
on 11 April 2022, as stated in the acknowledgement of receipt in the file.
EIGHT: On 19 April 2022, GLOVOAPP submitted a letter requesting an extension of the
deadline for submitting arguments.
NINTH: On 21 April 2022, this Agency decided to extend the time limit to a maximum of
five days, in accordance with Article 32 (1) of the LPACAP.
The extension agreement was notified to GLOVOAPP on the same day, as stated in the
acknowledgement of receipt in the file.
TENTH: On 3 May 2022, this Agency received a letter in due time and form from
GLOVOAPP in which it put forward arguments on the decision to initiate the procedure,
in which it stated, in summary, that:
FIRST. ON GLOVO’S COMPLIANCE WITH PERSONAL DATA PROTECTION RIGHTS
First, GLOVOAPP refers to the statements presented in the letter dated 18 September
2020 concerning the events concerning the management of the right to erasure
exercised by the former user of Glovo, a Polish national, through the chat managed by
Glovo’s Customer Care Service Department (SAC).
In those statements, GLOVOAPP understands that it was clear that, at no time, Glovo
refused or hindered the exercise of the complainant’s right to erasure for the purposes
of Article 12.2 of the LOPDGDD, but rather that Glovo showed flagrant flexibility by
deleting the complainant’s personal data immediately after receiving the complaint from
this Agency, despite not being exercised through the channels authorised for that
purpose at that time (email addresses legal@glovoapp.com and gdpr@glovoapp.com).
GLOVOAPP also refers to the reasons why GLOVOAPP was unable to delete the
complainant’s personal data in due time (it was impossible to locate it in a specific
territory or city because he had not placed an order via the platform and, consequently,
it was impossible to assign his request to a specific agent of the SAC), which cannot, in
any event, be understood as an intention on the part of Glovo not to comply with its duty
of care to the complainant’s right to erasure, for the purposes of Article 74 (c) of the
LOPDGDD.
Moreover, GLOVOAPP notes that the complainant’s right to erasure was immediately
respected for the reasons already expressed in the letter of 18 September 2020,
supplemented by a massive sending to all the agents who are members of the SAC
reminding them of the need to immediately refer to the Data Protection Officer any
exercise of rights that might be reached through the chat.
It is therefore clearly demonstrated that GLOVOAPP, as a controller, was already insured
and continues to ensure in its internal policies the satisfaction of data subjects’ rights,
regardless of how they are exercised.
It states that GLOVOAPP regularly and constantly monitors all the channels it has
contact with the user (web forms, app chat, email address, post, social media profiles,
etc.) in such a way that, if a data protection right is exercised, it is properly respected.
It considers that evidence of this is that, since the complainant’s complaint sent by this
Agency, GLOVOAPP has not received any other complaint from the latter or from any
other supervisory authority in the countries in which it operates for failure to comply with
a right to data protection and, in particular, a right to erasure. And that all these actions
by GLOVOAPP cannot be understood in any other way than as a clear willingness on
the part of GLOVOAPP to comply with the rules on the protection of personal data. 
In the light of the above, GLOVOAPP considers that the Agency should not finalise it
with a reprimand, since the actions that have taken place cannot be understood as a
clear intention to breach the data protection rules in the way that they do not wish to
comply with the complainant’s right to erasure, and the proceedings should be closed.
SECOND. — ON THE AGENCY’S DECISION ON THE CLOSURE OF THE
PROCEEDINGS
GLOVOAPP makes express reference to the decision of 5 October 2020 by which the
Director of the AEPD adopted a draft decision to discontinue these proceedings.
While the concerned supervisory authorities of Poland and Portugal raised objections to
the draft decision, it is clear to GLOVOAPP that the draft decision is not adopted by the
AEPD without considering that the actions and evidence obtained so far do not result in
the existence of a breach or serious harm to the rights and interests of the complainant.
GLOVOAPP considers that the AEPD, as the lead supervisory authority in these
proceedings, should have maintained the decision taken at the time, being the reprimand
an unnecessary and inappropriate sanction for this case, since Glovo has never shown
a willingness not to comply with the complainant’s right to erasure, especially since it has
shown clear and unequivocal flexibility by deleting his data immediately after receiving
the complaint from the AEPD, despite the fact that this right has been exercised by a
channel not authorised for this purpose.
In short, GLOVOAPP considers that Glovo has not failed to comply with data protection
rules, which is why the closure of the proceedings is the most appropriate decision for
this case.
THIRD. — NULLITY OF THE ADMINISTRATIVE ACT ON THE GROUND THAT THE
INFORMATION NECESSARY TO ESTABLISH AN INFRINGEMENT IS LACKING
In addition, GLOVOAPP considers that in no case can Glovo’s conduct be sanctioned in
the form of a reprimand, for the reasons set out below.
3.1 Absence of subjective elements of the infringement. Nullity of penalty
GLOVOAPP takes the view that it is necessary, first of all, to examine whether or not the
essential elements and conditions necessary for the imposition of a penalty in this case
have been met.
Thus, the principles governing the administration’s power to impose penalties will be, in
general, those of administrative sanctioning law and, in particular, ‘the principles of
legality, criminality, liability, proportionality and non-participation’.
Law 40/2015 of 1 October 1992 on the Legal Regime for the Public Sector provides that
an administrative offence is an action, understood in the broad sense of any action — or
omission by persons seeking to produce a result — and which the Legislator itself has
classified as an infringement. 
In accordance with the above, in order to be faced with a personal data protection
infringement, there must have been an intentional or negligent act or omission of any
degree of negligence. What does this mean? That the person liable could, at the very
least, have required different conduct.
Without wishing to subscribe to a compendium of sanctioning law, we can define
subjective elements of the type such as the different degrees of voluntary nature or, at
the very least, failure to comply with due diligence; deception is the clear manifestation
of the voluntary nature of the typical action in the commission and mere negligence is
the conduct that lacks the necessary care in complying with health obligations.
Thus, it is for the competent body to examine whether the conduct under examination is
intentional or negligent, since such an assessment is essential in order to be able to
impose a penalty, since they are constituent elements of the administrative offence.
The case-law that could be cited in support of the above statement would be almost
unlimited, so we will only refer to the judgment of the National High Court of 13 October
2005, since it gives a detailed overview of the principles of penalties, their development
and the evolution of the applicable case-law criteria.
Given that the judgment referred to is rather lengthy, and in order not to prolong us
unnecessarily by transcribing verbatim the entire content of the judgment, we can only
extract the paragraphs that we consider to be most representative:
‘Fourth... the assessment of guilt in the conduct of the offender is a requirement which
arises directly from the constitutional principles of legal certainty and legality, as regards
the exercise of powers to impose penalties of any kind. The principle of guilt is a basic
element in classifying a person’s conduct as punishable, i.e. it is an essential element in
any administrative offence (...)
Sixth (...) In summary, guilt must be as proven as the active or negligent conduct
penalised, and that evidence must be extended not only to the facts determining liability
but also, where appropriate, to those which qualify or aggravate the offence. (...)’
It is precisely the analysis of guilt which distinguishes a system of strict liability, in which
it is penalised solely on the basis of the result, from one based on the principle of fault.
GLOVOAPP therefore understands that it can be concluded that the agreement notified
to GLOVOAPP ignores one of the essential elements when it comes to being able to
impose a penalty (even in the form of a reprimand), such as the examination of guilt, it
being fully demonstrated that GLOVOAPP did not at any time intentionally wish to
disregard the complainant’s right to erasure. The opposite is true. Glovo immediately
drew attention to that right once it had been transferred by that agency.
GLOVOAPP therefore states that it must be borne in mind that the AEPD should have
carried out this analysis and that, therefore, it cannot be established that Glovo intended
to infringe the data protection legislation (in the way that it wished to hinder, prevent or
not comply with the complainant’s right to erasure), and that the assessment of that
intention as an essential element of the administrative offence was disregarded.
GLOVOAPP takes the view that the imposition of a penalty would be null and void.
3.2. The absence of evidence rebutting Glovo’s presumption of innocence. Nullity of
penalty
In this regard, it should be noted that, as it has been repeatedly pointed out by the caselaw, the existence of conduct constituting an administrative offence is a prerequisite and
inexcusable for the imposition of any administrative penalty. The administration cannot
therefore penalise without sufficiently proving the guilt of the person penalised, that is to
say, the existence of bad faith in its conduct. It is therefore clear that the administration
bears the burden of proving the guilt of the person concerned, which must be proved by
any of the means permitted under the law.
However, in the present case, GLOVOAPP is not aware that there is absolutely no
evidence to support the rebuttal of the presumption of innocence which, within the
administrative and sanctioning sphere, is fully applicable to relations between the
administration and those administered, as has been recognised by countless judicial
decisions in all hierarchical and territorial areas.
In this regard, for example, the judgment of the High Court of Justice of 10 June 1994
stated: ‘(...) in the exercise of the power of the public authorities to impose penalties, the
presumption of innocence of any person accused of an offence is, to the fullest extent
possible, a presumption of innocence until proven guilt. This principle, incorporated in
Article 24 of our Constitution, has the immediate procedural consequence of shifting the
burden of proof to the accused, and in the case of the power to impose penalties, to the
public administration. In adversarial proceedings, with the participation and hearing of
the accused, it is for the defendant to provide, collect and produce the evidence, using
common means to support the factual situation which it is claimed to be classified as an
administrative offence. If no such evidentiary activity has taken place, it is clear that the
account or description of the events by the authority or its staff does not give rise to a
presumption of veracity which would oblige the accused to prove his innocence, thereby
reversing the burden of proof’ (SSTS of 16 December 1986 and 26 December 1988)
Similarly, in relation to this lack of evidence and for the purposes of assessing what
happened in the present case, the judgment of the Supreme Court of 26 December 1983
(RJ 1983\ 6418), which provided as follows: ‘(...) In matters relating to penalties, it is not
sufficient for the Administration to believe that a person has carried out certain facts in
order to apply the penalty applicable to them. Rather, it is necessary to establish that he
is indeed the author of those acts, and this requirement cannot be considered to have
been complied with by two reports, which (...) are no longer a subjective assessment of
the person who issued them and that, even if the person who issued them is enhanced
by the status of the author, it cannot be the decisive factor that the Administration seeks,
when the person concerned contradicts it in full detail, and when it relates to facts which,
by their very nature, could have been easily and definitively proven or confirmed by the
most varied means (...). In the area of penalties under administrative law, it is not
appropriate to rely on reasonable grounds, or conscientious assessments, in order to
establish an administrative offence, by imposing on the administration which accuses
and penalises, under the presumption of innocence, the burden of proving the truth of
the acts he accuses, and that those facts are imputable to the accused person, given
that the presumption of innocence referred to above, now enshrined in Article 24 of the
Constitution, can only be rebutted by proof of guilt SS of 16 February, 23 March and 28 September 1982 (RJ 1982/968, RJ 1982/2324 and RJ 1982/5513), the legality of
administrative penalties is conditioned by the nature of the offence and the penalty and
by the conclusive and unequivocal proof that the person penalised is responsible for it,
recalling the Chamber’s Supreme Court of 23 December 1981 (RJ 1981/5453) that the
prosecution, in particular, of an administrative decision finalising corrective or penalty
proceedings must be based on the analysis of the facts or act challenged, of its nature
and scope. in order to determine and see whether or not the administrative offence
pursued can be subsumed in one of the cases, the types of administrative offence
provided for in the legislation which serves as the basis for estimating the infringement
sought and, where appropriate, punished, a prosecution which must be carried out on
the basis of a purely legal criterion, since the classification of the administrative offence
is not a discretionary power of the administration or of the sanctioning authority, but
rather a legal activity which requires, as an objective condition, the offence to be included
in the predetermined legal category as a fault, the liability for an administrative offence
cannot be resolved on the basis of mere presumptions, indicia or conjecture, but on the
basis of the reality of facts that are fully established and proven (...).’
In those circumstances, it is clear that the Agreement should be required to go beyond
the mere reference to the legal provisions of the LOPDGDD to which reference has been
made above. In the present case, GLOVOAPP takes the view that the AEPD confines
itself to reviewing the background to the file in the Agreement, but, as has been
demonstrated, it can in no way be said that we are faced with a clearly intentional
infringement of the data protection legislation by Glovo, especially if, as has been shown
in the facts, the complainant’s right to erasure was clearly respected.
In the view of GLOVOAPP, the main objective of the penalty proceedings must be to
break the presumption of innocence enjoyed by any person required by seeking the
intentional element in his action, the subjective element of the administrative offence by
means of an evidentiary activity that can be considered sufficient.
However, GLOVOAPP considers that in the present case there is no real incriminating
evidence in the initiation of proceedings to suggest that GLOVOAPP’s conduct is
culpable.
In the light of all the above arguments, GLOVOAPP asked the AEPD to withdraw the
agreement imposing a penalty imposed on GLOVOAPP, on the grounds that it wished
to be imposed with a total absence of evidence of guilt and, consequently, in breach of
the fundamental right to the presumption of innocence enshrined in the Spanish
Constitution.
3.3. Absence of guilt. Nullity of penalty
In order to prove the absence of guilt, GLOVOAPP refers, with regard to the invocation
of the principle of guilt, that the Constitutional Court has established as one of the basic
pillars for the interpretation of administrative sanctioning law that the principles and
guarantees present in the area of criminal law are applicable, with certain nuances, in
the exercise of any power to impose penalties on the part of the public administration
(STC 76/1990 of 26 April 2007). 
In its judgment of 10 February 1986, the Supreme Court stated that ‘the exercise of the
power to impose penalties, whatever its manifestations, must be consistent with the
constitutional principles and requirements governing the criminal legal system as a
whole, and, whatever the sphere in which the State’s punitive power, the courts, or the
field in which it occurs, are subject to the same principles, the observance of which
legitimises the imposition of penalties and penalties. therefore, administrative offences
must, in order to be punishable or punished, be typical, that is to say, provided for as
such by previous legal rules, which are unlawful, that is to say, damage to a legal asset
provided for by law, and culpable, attributable to an perpetrator on the basis of willful
misconduct or fault, in order to ensure, in his assessment, the balance between the
public interest and the guarantee of individuals, which is the key to the rule of law’.
In the specific case, at no time has GLOVOAPP failed to comply with the data protection
rules, and GLOVOAPP considers that it has fulfilled all its obligations in a religious
manner. There has been no intention to infringe, quite the contrary.
GLOVOAPP considers that it has demonstrated to the AEPD its willingness to comply
with the rules on the protection of personal data by immediately deleting the
complainant’s data once the complaint has been forwarded by the AEPD and ensuring
that users’ rights are fully satisfied at all times regardless of the channel they are
exercised.
For all the above arguments, GLOVOAPP considers that there is a complete absence of
evidence of guilt and, consequently, a violation of the fundamental right to the
presumption of innocence enshrined in the Spanish Constitution.
3.4. Absence of the principles of criminality and presumption of innocence. Nullity of
penalty
GLOVOAPP considers it necessary to highlight the non-existence of the conduct found
to constitute an infringement and for which it is penalised in administrative proceedings.
This should have led the AEPD to close the penalty proceedings against GLOVOAPP
(decision already taken by the AEPD in its draft decision of 5 October 2020), since
otherwise there would be a flagrant breach of the principle of criminality resulting from
the applicable legislation.
It has already been stated, in principle, that the legal system protects those involved in
penalty proceedings by requiring that the administrative bodies responsible for the
initiation of penalty proceedings consider as infringements only conduct that adequately
falls within the definitions that explicitly establish rules with legal status. Thus, the first
paragraph of Article 129 of Law 40/2015 provides as follows: ‘Article 27. Principle of
criminality. 1. Administrative offences are only infringements of the legal order provided
for as such by a law, without prejudice to the provisions of Title XI of Law 7/1985 of 2
April 1992 for the Local Government’ (emphasis added and bold).’
In close connection with that provision, Law 40/2015 provides that the starting point for
any action aimed at establishing liability for the commission of administrative offences
must be to consider that, unless it is established otherwise, the person concerned has
not committed the types declared as such. 
As mentioned above, this is known as the principle of the presumption of innocence,
which is fully consistent with the fact that the administration is obliged to carry out the
investigative activity in order to verify whether specific conduct is subsumed into a type
of infringement. Thus, with regard to the presumption of innocence, Law 39/2015
provides that that principle also applies to penalty proceedings.
With regard to the importance of compliance with the principle of criminality in the
administrative procedure, the judgment of the Supreme Court of 2 June 2010, Chamber
for Contentious Administrative Proceedings, Section 4, stated, and reproduced in
extensive and consolidated legal literature, the following: ‘The principle of criminality, the
most important of those on which the right to impose an administrative penalty is based,
requires, at the very least, a perfect match between the act and the final act as a breach,
such as the objective and personal circumstances which determine the illegality, in order
to establish precisely the conduct of the person concerned at the definitive rate by the
provision deemed to have been breached (judgments of 25 March 1977, 13 May and 22
December 1986). Judgments of the Tribunal Supremo (Supreme Court) of 12 February).’
As regards the principle of the presumption of innocence in the context of administrative
powers to impose penalties, the case-law has also been unequivocal in that it requires
administrative bodies to comply strictly with and subject to it. Thus, from an early stage
— and settled case-law — the Constitutional Court has consistently held that the
principle of the presumption of innocence fully subjects the power to impose
administrative penalties.
As an example, reference may be made — for example — to Judgment of the
Constitutional Court 13/1982 of 1 April 2007, which was expressed verbatim as follows:
‘(...) the presumption of innocence is no longer a general principle of the right to be
informed by judicial activity (“in dubio pro reo”) in order to become a fundamental right
which is binding on all public authorities and which is applicable immediately, as the
Court has stated in numerous judgments.... The right to the presumption of innocence
cannot be understood as being limited to the strict scope of prosecution of allegedly
criminal conduct, but must also be understood as leading to the adoption of any decision,
whether administrative or judicial, which is based on the status or conduct of the persons
and which results in a penalty for them or limiting their rights.’
In greater detail, the Supreme Court has also enshrined in its judicial activity the
application of the principle of the presumption of innocence. Thus, by judgment of 28
February 1994, Chamber for Contentious Administrative Proceedings, Section 7, the
High Court held: ‘From a broad perspective, the identity of the principles of administrative
sanctioning law with the power to impose criminal penalties is limited to the following
general doctrines: the principle of legality (there is no administrative offence or penalty
without any prior law determining them), the principle of typical unfairness (specific
delimitation of the conduct to be criticised for the purposes of the penalty), the principle
of ‘nulla punición sine culpa’ (the existence of intent or fault on the part of the perpetrator
of the offence subject to the condition of a penalty) and, finally, with obvious significance
in the present case, the principle of full proof of the reality of the impugned conduct, the
expression of which in the constitutional principle of the presumption of innocence is
clear, and which is sufficient to prove the actual performance by the accused of the impugned act or omission, with strict application of the right to impose administrative
penalties’.
In view of the importance which the legal system attaches to the principles of criminality
and the presumption of innocence in the context of the administration’s power to impose
penalties, and given the extensive acceptance in the case-law of the obligation to apply
those principles to the administrative penalty procedure, all of the foregoing must be
compared immediately with what happened in the present proceedings.
In the light of the above, GLOVOAPP considers that it has been duly demonstrated that
it has always acted in good faith, applying the utmost effort to comply with data protection
rules in the belief that it is lawful, as this is its requirement as a controller of the personal
data of data subjects and with the aim of never jeopardising their rights and freedoms.
There is therefore no clear ‘intent’ in failing to comply with the legislation in force, since
it took all the necessary and appropriate actions to comply with the rules and has
prudently aligned its actions with the law.
ELEVENTH: On9 May 2022, the body conducting the penalty proceedings issued a
proposal for a resolution, in which it proposed that the Director of the AEPD issue a
reprimand to GLOVOAPP23, S.. L., VAT B66362906, for an infringement of Article 12 of
the GDPR, as set out in Article 83 (5) of the GDPR.
The proposal for a resolution was notified in accordance with the rules laid down in the
LPACAP on 18 May 2022, as stated in the acknowledgement of receipt in the file.
TWELFTH: After the deadline for this purpose, we have not received any comments from
GLOVOAPP on the above-mentioned proposal for a resolution.
The actions taken in these proceedings and the documentation contained in the file have
shown the following:
PROVEN FACTS
FIRST: On 7 November 2019 at 0.10 hrs an email was sent from
liveops.comms@glovoapp.com to with the following
message: ‘Thank you for contacting Glovo! We have just received your message. We
will respond to it in 24 hours. Thank you for your patience during this waiting period’. This
email responds to a message dated 6 November 2019 at 23: 10 in which it is claimed
that the delivery area is too small.
SECOND: On 12 November 2019 at 8: 56 hrs an email was sent from
liveops.comms@glovoapp.com to with the following
message: ‘Thank you for contacting Glovo! We have just received your message. We
will respond to it in 24 hours. Thank you for your patience during this waiting period.’ This
email responds to a message dated 12 November 2019 at 8: 56 hrs explaining that his
requests are not being dealt with. The complainant notes that he had already notified the
Data Protection Authority and he expects his account to be deleted immediately.
THIRD: On 12 November 2019 at 9:43 hrs an email was sent from
liveops.comms@glovoapp.com to with the following
message: ‘Thank you for contacting Glovo! We have just received your message. We
will respond to it in 24 hours. Thank you for your patience during this waiting period’. This
email responds to a message dated 12 November 2019 at 8: 43 hrs explaining that a
week ago he sent an email requesting the deletion of his account and received no reply,
but received an information document. He also warned that he would notify the data
protection authority that they did not have a request form for deletion of data in Polish,
only in Spanish.
FOURTH: On 13 November 2019 at 19:39 hrs an email was sent from
liveops.comms@glovoapp.com to with the following
message: ‘Thank you for contacting Glovo! We have just received your message. We
will respond to it in 24 hours. Thank you for your patience during this waiting period’. This
email responds to a message dated 13 November 2019 at 18: 39 hrs requesting that his
personal data be immediately no longer processed and deleted from all databases. In
addition, he requests the deletion of his account within two working days.
FIFTH: The Client Care Service (SAC) of GLOVOAPP allocates a user response agent
depending on the territory in which the user is located, in order to be able to respond in
the same language as the one in which the request is launched. In this case, the
complainant was not assigned any city or territory, as he had not placed an order through
the app and could not be located on the basis of the territory. This is why, since it was
impossible to locate the user in a particular city, the system did not transmit the data
deletion requests to any SAC actor, and the user received only the response that the
SAC automatically generates before a user response agent is assigned.
SIXTH: Following the transfer of the complaint, GLOVOAPP has deleted the
complainant’s personal data (although they only had his email address, as he did not
make any order), and have contacted him to inform him of this, and of the retention of
his data in a blocked state, inter alia, to defend himself in complaints (by email dated 16
September 2020).
SEVENTH: GLOVOAPP has sent a reminder to all actors on the need to send to the
Office of the Data Protection Officer all communications that may include a request to
exercise rights, even if this request is hidden or not obvious. It has also reported to the
department responsible for the SAC the inconvenience related to the allocation of
requests by users who have not placed orders or who have not indicated a country or
address when registering in the app. As long as a technical solution to the problem is not
found, its officers will check, manually and regularly, requests that have not been
automatically assigned to any actor.
LEGAL GROUNDS
I
Competence and applicable law
In accordance with the powers conferred on each supervisory authority by Article 58 (2)
of Regulation (EU) 2016/679 (General Data Protection Regulation (GDPR)), and in
accordance with Articles 47 and 48.1 of Organic Law 3/2018 of 5 December on the
Protection of Personal Data and Guarantee of Digital Rights (hereinafter LOPDGDD),
the Director of the Spanish Data Protection Agency is responsible for initiating and
deciding on this procedure.
In addition, Article 63(2) of the LOPDGDD provides that: “The procedures handled by
the Spanish Data Protection Agency shall be governed by the provisions of Regulation
(EU) 2016/679, of this organic law, by the regulatory provisions dictated in their
development and, insofar as they are not contradicted, alternatively, by the general rules
on administrative procedures”.
II
Preliminary remarks
In the present case, in accordance with Article 4 (1) of the GDPR, there is a processing
of personal data, since GLOVOAPP collects and stores, as a minimum, the electronic
mail of natural persons, among other processing operations.
GLOVOAPP carries out this activity in its capacity as controller, since it is the controller
who determines the purposes and means of that activity, pursuant to Article 4 (7) of the
GDPR.
The GDPR provides, in Article 56 (1), for cases of cross-border processing, as provided
for in Article 4 (23) thereof, in relation to the competence of the lead supervisory authority,
that, without prejudice to Article 55, the supervisory authority of the main establishment
or the single establishment of the controller or processor shall be competent to act as
lead supervisory authority for the cross-border processing carried out by that controller
or processor in accordance with the procedure set out in Article 60. In the case under
consideration, as explained above, GLOVOAPP has its main establishment in Spain, so
the Spanish Data Protection Agency is competent to act as the lead supervisory
authority.
The right to erasure of personal data is regulated by Articles 17 of the GDPR and Article
15 of the LOPDGDD, while the way in which these rights are to be respected is regulated
in Article 12 GDPR.
III
Allegations
With regard to the allegations in response to the decision to initiate the present penalty
proceedings, we will respond to them in the order set out by GLOVOAPP:
FIRST. ON GLOVO’S COMPLIANCE WITH PERSONAL DATA PROTECTION RIGHTS
GLOVOAPP understands that it became apparent that at no time did it deny or impede
the exercise of the complainant’s right to erasure for the purposes of Article 12.2 of the
LOPDGDD, but rather showed flagrant flexibility by deleting the complainant’s personal
data immediately after receiving the complaint from this Agency, despite not being exercised through the channels authorised for that purpose at that time (email addresses
legal@glovoapp.com and gdpr@glovoapp.com).
In addition, it refers to the reasons why it was unable to delete the complainant’s personal
data in due time (it was impossible to locate it in a specific territory or city because it had
not placed an order via the platform and, consequently, it was impossible to assign its
request to a specific agent of the SAC), which cannot in any event be understood as an
intention on the part of GLOVOAPP not to comply with its duty of care for the right of
deletion exercised by the complainant, for the purposes of Article 74 (c) of the
LOPDGDD.
Moreover, GLOVOAPP notes that the complainant’s right to erasure was immediately
respected for the reasons already expressed in the letter of 18 September 2020,
supplemented by a massive sending to all the agents who are members of the SAC
reminding them of the need to immediately refer to the Data Protection Officer any
exercise of rights that might be reached through the chat.
It is therefore clearly demonstrated that GLOVOAPP, as a controller, was already insured
and continues to ensure in its internal policies the satisfaction of data subjects’ rights,
regardless of how they are exercised.
In that regard, the Agency would like to point out that it was precisely not ‘ensured’ that
the rights of data subjects would be satisfied, irrespective of the way in which they are
exercised, since the complainant requested the deletion of their data via a channel which
was certainly different from that provided for by GLOVOAPP, which is why the company
was unable to comply with it correctly. This was, as the company acknowledges, due to
the fact that the complainant had not placed an order, so that it could not be allocated a
specific territory or city, which caused it not to be assigned a specific agent of the SAC
to that request.
Although it is true that, after the complaint was forwarded by this Agency, GLOVOAPP
has duly complied with the complainant’s request, which is positively assessed by this
Agency, the fact remains that the complainant’s request was not complied with within the
time limit laid down by the GDPR.
GLOVOAPP also maintains that it regularly and constantly monitors all the channels with
which it has contact with the user (web forms, app chat, email address, post, social media
profiles, etc.) so that, if a data protection right is exercised, it is properly respected.
This is demonstrated by the fact that, since the complainant’s complaint sent by this
Agency, GLOVOAPP has not received any other complaint from the latter or from any
other supervisory authority in the countries in which it operates for failure to comply with
a right to data protection and, in particular, a right to erasure.
However, this Agency would like to stress that the fact that no other complaint has been
received from any supervisory authority does not constitute evidence that it ‘monitors
regularly and constantly all the channels with which it has contact with the user (...) in
such a way that, if a data protection right is exercised, it is properly respected’.
In any event, it is clear that, irrespective of the action taken by GLOVOAPP after the
facts at issue in these proceedings, at the time when the complainant made his request
to delete his data, this monitoring was not being carried out or was not being carried out
correctly, given that his right was not properly respected.
Finally, GLOVOAPP considers that the Agency is finalising it with a reprimand, but the
actions that have taken place cannot be understood as a clear intention to breach the
data protection rules in the way that they do not wish to comply with the complainant’s
right to erasure, and that they should be closed.
In this regard, the Agency does not consider that there was a clear intention to breach
the data protection rules, but that GLOVOAPP acted negligently by failing to provide for
an internal mechanism to deal with requests concerning the exercise of rights under the
legislation on the protection of personal data received via channels other than those
initially provided for. In particular, in cases where the system could not assign a given
SAC agent, as a specific city or territory cannot be assigned to the user, as was the case
in the present case.
In the light of the above, the present claim is rejected.
SECOND. — ON THE AGENCY’S DECISION ON THE CLOSURE OF THE
PROCEEDINGS
GLOVOAPP makes express reference to the decision of 5 October 2020 by which the
Director of the AEPD adopted a draft decision to discontinue these proceedings.
While the concerned supervisory authorities of Poland and Portugal raised objections to
the draft decision, it is clear to GLOVOAPP that the draft decision is not adopted by the
AEPD without considering that the actions and evidence obtained so far do not result in
the existence of a breach or serious harm to the rights and interests of the complainant.
GLOVOAPP considers that the AEPD, as the lead supervisory authority in these
proceedings, should have maintained the decision taken at the time, the reprimand being
an unnecessary and inappropriate sanction for this case, since Glovo has never shown
a willingness not to comply with the complainant’s right to erasure, especially since it has
shown clear and unequivocal flexibility by deleting his data immediately after receiving
the complaint from the AEPD, despite the fact that this right has been exercised by a
channel not authorised for this purpose.
In this respect, the Agency would like to point out that the mechanism that Article 60
GDPR obliges the lead authority, in the case of cross-border processing, to take a
unanimous decision together with the other authorities concerned. It is precisely
envisaged that a new decision will be reached in which all supervisory authorities agree,
either by means of a draft decision or a revised draft decision.
In this regard, the Spanish Agency initially proposed to the other authorities that the
proceedings be discontinued by means of the aforementioned draft decision to
discontinue the proceedings, but relevant and reasoned objections were raised which
led this Agency to reconsider its initial interpretation, reaching an agreement with the other authorities on the assessment of the existence of an infringement on the part of
GLOVOAPP, without being obliged at any time to maintain its initial position.
On the basis of the above, the present claim is rejected.
THIRD. — NULLITY OF THE ADMINISTRATIVE ACT ON THE GROUND THAT THE
INFORMATION NECESSARY TO ESTABLISH AN INFRINGEMENT IS LACKING
GLOVOAPP considers that under no circumstances can their conduct be sanctioned in
the form of a reprimand, for the reasons set out below.
3.1 Absence of subjective elements of the infringement. Nullity of penalty
GLOVOAPP considers that the existence of intentional or negligent action in the present
case has not been analysed in order to be able to impose a penalty in the present case.
In other words, the existence of the subjective element (guilt) required by Law 40/2015
in order to establish the existence of an administrative offence has not been analysed.
Stresses GLOVOAPP that it has been proven that it has never intentionally wanted to
disregard the complainant’s right of withdrawal. The opposite is true. It has immediately
taken this right into account once it has been transferred by this Agency.
GLOVOAPP therefore states that it must be borne in mind that the AEPD should have
carried out this analysis and that, therefore, it cannot be established that Glovo intended
to infringe the data protection legislation (in the way that it wished to hinder, prevent or
not comply with the complainant’s right to erasure), and that the assessment of that
intention as an essential element of the administrative offence was disregarded.
GLOVOAPP takes the view that the imposition of a penalty would be null and void.
In this regard, the Agency repeats what has been stated above, to the effect that we do
not consider that there would have been a clear intention to breach the data protection
rules, but that GLOVOAPP acted negligently by failing to provide for an internal
mechanism to deal with requests concerning the exercise of rights under the legislation
on the protection of personal data received by channels other than those initially provided
for. In particular, in cases where the system could not assign a given SAC agent, as a
specific city or territory cannot be assigned to the user, as was the case in the present
case.
On the basis of the above, the present claim is rejected.
3.2. The absence of evidence rebutting Glovo’s presumption of innocence. Nullity of
penalty
GLOVOAPP submits that the administration bears the burden of proving the guilt of the
person concerned, which must be proved by any of the means admitted in law.
And that, in the present case, it is not apparent that there is absolutely any evidence
capable of rebutting the presumption of innocence which, within the administrative and
sanctioning sphere, is fully applicable to relations between the administration and those administered, as has been recognised by countless judicial decisions in all hierarchical
and territorial areas.
In the present case, GLOVOAPP takes the view that the AEPD confines itself to
reviewing the background to the file in the Agreement, but in no way can it be said that
we are faced with a clearly intentional infringement of data protection rules by Glovo,
especially if, as has been shown in the facts, the complainant’s right to erasure was
clearly respected.
GLOVOAPP considers that in the present case there is no real incriminating evidence at
the time of that initiation of proceedings to suggest that there is guilt in GLOVOAPP’s
conduct.
In this regard, the Agency stresses that it does not understand that there was a clear
intention to breach the data protection rules, but considers that GLOVOAPP acted
negligently by failing to provide for an internal mechanism to deal with requests
concerning the exercise of rights under the legislation on the protection of personal data
received by channels other than those initially provided for. In particular, in cases where
the system could not assign a given SAC agent, as a specific city or territory cannot be
assigned to the user, as was the case in the present case.
As regards the evidence to that effect, GLOVOAPP stated in its reply to the transfer of
the complaint and in its written observations on the decision to initiate the penalty
proceedings that the request to delete the complainant’s personal data had not been
complied with, since it had not been possible to assign it into a specific SAC agent, since
it had not placed an order and had not been assigned a specific city or territory. It was
this situation that led to the failure to comply with the request made. And that, after
becoming aware of the complaint, GLOVOAPP took measures to prevent this type of
situation from recurring in the future (which has been positively assessed and it has been
decided to replace a penalty in the form of a fine for issuing a reprimand, under the terms
of the GDPR).
On the basis of the above, the present claim is rejected.
3.3. Absence of guilt. Nullity of penalty
GLOVOAPP insisted that, in the specific case, at no time the data protection legislation
had been omitted or infringed, GLOVOAPP considered that it had fulfilled all its
obligations in a religious manner. There has been no intention to infringe, quite the
contrary.
GLOVOAPP considers that it has demonstrated to the AEPD its willingness to comply
with the rules on the protection of personal data by immediately deleting the
complainant’s data once the complaint has been forwarded by the AEPD and ensuring
that users’ rights are fully satisfied at all times regardless of the channel they are
exercised.
For all the above arguments, GLOVOAPP considers that there is a complete absence of
evidence of guilt and, consequently, a violation of the fundamental right to the
presumption of innocence enshrined in the Spanish Constitution.
In this regard, the Agency stresses that it does not consider that there was a clear
intention to breach the data protection rules, but that GLOVOAPP acted negligently by
failing to provide for an internal mechanism to deal with requests concerning the exercise
of rights under the legislation on the protection of personal data received via channels
other than those initially provided for. In particular, in cases where the system could not
assign a given SAC agent, as a specific city or territory cannot be assigned to the user,
as was the case in the present case. It therefore considers that there is sufficient
evidence to show that GLOVOAPP acted negligently, which determines the existence of
that infringement.
On the basis of the above, the present claim is rejected.
3.4. Absence of the principles of criminality and presumption of innocence. Nullity of
penalty
GLOVOAPP points to the importance that the legal system attaches to the principles of
criminality and the presumption of innocence in the context of the administration’s power
to impose penalties, and the extensive acceptance in the case-law of the obligation to
apply those principles to the administrative penalty procedure, which must be compared
with what happened in the present proceedings.
GLOVOAPP considers that it has been duly demonstrated that it has always acted in
good faith, making every effort to comply with data protection rules in the belief that it is
lawful, since it is its requirement as a controller of the personal data of data subjects and
with a view to never jeopardising their rights and freedoms. There is therefore no clear
‘intent’ in failing to comply with the legislation in force, since it took all the necessary and
appropriate actions to comply with the rules and has prudently aligned its actions with
the law.
In this regard, the Agency stresses that it does not consider that there was a clear
intention to breach the data protection rules, but that GLOVOAPP acted negligently by
failing to provide for an internal mechanism to deal with requests concerning the exercise
of rights under the legislation on the protection of personal data received via channels
other than those initially provided for. In particular, in cases where the system could not
assign a given SAC agent, as a specific city or territory cannot be assigned to the user,
as was the case in the present case. It therefore considers that there is sufficient
evidence to show that GLOVOAPP acted negligently, which determines the existence of
that infringement.
On the basis of the above, the present claim is rejected.
IV
Right to erasure
Article 17 ‘right of erasure (‘right to be forgotten’)’ of the GDPR provides that:
‘1. The data subject shall have the right to obtain from the controller the erasure of
personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following
grounds applies:
(a) the personal data are no longer necessary in relation to the purposes for which they
were collected or otherwise processed;
(b) the data subject withdraws consent on which the processing is based according to
point (a) of Article 6(1), or point (a) of Article 9(2) and where there is no other legal ground
for the processing;
(c) the data subject objects to the processing pursuant to Article 21(1) and there are no
overriding legitimate grounds for the processing, or the data subject objects to the
processing pursuant to Article 21(2);
(d) the personal data have been unlawfully processed;
(e) the personal data have to be erased for compliance with a legal obligation in Union
or Member State law to which the controller is subject;
(f) the personal data have been collected in relation to the offer of information society
services referred to in Article 8(1).
2. Where the controller has made the personal data public and is obliged pursuant to
paragraph 1 to erase such data, the controller, taking account of available technology
and the cost of the implementation, shall take reasonable steps, including technical
measures, to inform controllers which are processing the personal data that the data
subject has requested the erasure by such controllers of any link to, or copy or replication
of, those personal data.
3. Paragraphs 1 and 2 shall not apply to the extend that processing is necessary:
(a) for exercising the right of freedom of expression and information;
(b) for compliance with a legal obligation which requires processing by Union or Member
State law to which the controller is subject, or for the performance of a task carried out
in the public interest or in the exercise of official authority vested in the controller;
(c) for reasons of public interest in the area of public health in accordance with points (h)
and (i) of Article 9(2) and (3);
(d) for archiving purposes in the public interest, scientific or historical research purposes
or statistical purposes in accordance with Article 89(1), in so far as the right referred to
in paragraph 1 is likely to render impossible or seriously impair the achievement of the
objectives of that processing; or
(e) for the establishment, exercise or defence of legal claims’.
Article 15 ‘Right of erasure’ of the Spanish LOPDGDD provides that:
‘1. The right to erasure shall be exercised in accordance with the provisions of Article 17
of Regulation (EU) 2016/679.
2. When such erasure derives from the exercise of the right to object pursuant to article
21.2 of Regulation (EU) 2016/679, the controller may preserve the necessary data
subject’s identification data in order to prevent future processing for direct marketing
purposes.’
In the present case, it is common ground that the complainant had requested
GLOVOAPP to delete his personal data on at least four occasions.
V
Modalities for the exercise of the rights of the data subject
Article 12‘Transparent information, communication and modalities for the exercise of the
rights of the data subject’ of the GDPR states that:
‘1. The controller shall take appropriate measures to provide any information referred to
in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to
processing to the data subject in a concise, transparent, intelligible and easily accessible
form, using clear and plain language, in particular for any information addressed
specifically to a child. The information shall be provided in writing, or by other means,
including, where appropriate, by electronic means. When requested by the data subject,
the information may be provided orally, provided that the identity of the data subject is
proven by other means.
2. The controller shall facilitate the exercise of data subject rights under Articles 15 to
22. In the cases referred to in Article 11(2), the controller shall not refuse to act on the
request of the data subject for exercising his or her rights under Articles 15 to 22, unless
the controller demonstrates that it is not in a position to identify the data subject.
3. The controller shall provide information on action taken on a request under Articles 15
to 22 to the data subject without undue delay and in any event within one month of receipt
of the request. That period may be extended by two further months where necessary,
taking into account the complexity and number of the requests. The controller shall
inform the data subject of any such extension within one month of receipt of the request,
together with the reasons for the delay. Where the data subject makes the request by
electronic form means, the information shall be provided by electronic means where
possible, unless otherwise requested by the data subject.
4. If the controller does not take action on the request of the data subject, the controller
shall inform the data subject without delay and at the latest within one month of receipt
of the request of the reasons for not taking action and on the possibility of lodging a
complaint with a supervisory authority and seeking a judicial remedy.
5. Information provided under Articles 13 and 14 and any communication and any actions
taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests
from a data subject are manifestly unfounded or excessive, in particular because of their
repetitive character, the controller may either:
(a) charge a reasonable fee taking into account the administrative costs of providing the
information or communication or taking the action requested; or
(b) refuse to act on the request.
The controller shall bear the burden of demonstrating the manifestly unfounded or
excessive character of the request.
6. Without prejudice to Article 11, where the controller has reasonable doubts concerning
the identity of the natural person making the request referred to in Articles 15 to 21, the
controller may request the provision of additional information necessary to confirm the
identity of the data subject.
(...)”.
Article 12 ‘General provisions on the exercise of rights’ of the Spanish LOPDGDD
provides that:
‘1. The rights established in Articles 15 to 22 of Regulation (EU) 2016/679 may be
exercised directly or through a legal or voluntary representative.
2. The controller shall be obliged to inform the data subject about the means available to
him or her to exercise his or her rights. Such means shall be easily accessible by the
data subject. The exercise of the right may not be denied on the sole ground that the
data subject chooses a different means
3. The processor may process, on behalf of the controller, any request submitted by the
data subjects to exercise their rights if this is established in the binding contract or legal
act.
4. The evidence of compliance with the duty to respond to the request for the exercise
of rights submitted by the data subject shall be the responsibility of the controller.
5. Where the laws applicable to certain processing establish a special regime that affects
the exercise of the rights provided for in Chapter III of Regulation (EU) 2016/679, the
provisions of those laws shall apply.
6. In any case, the holders of the parental authority may exercise in the name and on
behalf of minors under fourteen years old the rights of access, rectification, cancellation,
opposition and any other rights to which they may be entitled in the context of this organic
law.
7. Any actions carried out by the controller to address requests to exercise these rights
shall be free of charge, notwithstanding the provisions of articles 12.5 and 15.3 of
Regulation (EU) 2016/679 and paragraphs 3 and 4 of article 13 of this organic law.’
In the present case, it is common ground that the complainant requested the deletion of
his account and personal data on at least four occasions. The last of these on 13
November 2019. However, it was only on 16 September 2020 that GLOVOAPP
confirmed to the complainant that it duly complied with that request, after having received
the transmission of the aforementioned complaint from the Agency.
Although the complainant had not used the form for that purpose, he had contacted a
customer service agent via a chat and had received an automatic reply from the
undertaking to reply to it within 24 hours.
Indeed, it is the responsibility of the controller to ensure the satisfaction of data subjects’
rights in general and, in particular, to comply with any requirements of the GDPR in
relation to these rights. The accountability principle, in line with Article 5 (2) GDPR,
implies that the controller must adapt its internal processes to comply with its regulatory
obligations, in line with the organisation and processing of personal data it carries out. In
addition, the controller must demonstrate that the solutions adopted comply with the
requirements of the regulations.
In this context, the controller can and should have mechanisms that allow for the exercise
of each of the rights in a simple way for data subjects and to give them full satisfaction
in the shortest possible time. The controller should also demonstrate flexibility in the
interaction with the data subject on a specific application, regardless of its internal policy.
The fact that the request was made by means of an alternative to the mechanisms put
in place by the undertaking should not be a reason not to comply with it.
Therefore, on the basis of the evidence available, the known facts are considered to
constitute an infringement, attributable to GLOVOAPP, of Article 12 GDPR, read in
conjunction with Article 17 GDPR.
VI
Sanction of the infringement of Article 12 GDPR
The infringement of Article 12 of the GDPR entails the commission of the infringements
referred to in Article 83 (5) of the GDPR, which, under the heading ‘General conditions
for the imposition of administrative fines’, provides:
‘Infringements of the following provisions shall, in accordance with paragraph 2, be
subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking,
up to 4 % of the total worldwide annual turnover of the preceding financial year,
whichever is higher:
(...)
(b) the data subjects' rights pursuant to Articles 12 to 22; (…)’
In that regard, Article 71 (‘Infringements’) of the Spanish LOPDGDD provides that:
‘The actions and behaviours referred to in sections 4, 5 and 6 of Regulation (EU)
2016/679, as well as those which are contrary to this organic law, shall constitute
infringements.’.
For the purposes of the limitation period, Article 74‘Minor infringements’ of the Spanish
LOPDGDD states:
‘In accordance with sections 4 and 5 of article 83 of Regulation (EU) 2016/679, any
infringement consisting on merely formal lack of compliance with the provisions mentioned therein, especially the ones listed below, shall be considered a minor
infringement and its limitation period shall be one year:
(...)
(c) Failing to attend to the requirements to exercise any of the rights established by
articles 15 to 22 of Regulation (EU) 2016/679, unless this results from the implementation
of article 7.2.k) of this organic law’.
VII
Sanction for the infringement of Article 12 GDPR
Without prejudice to Article 83 of the GDPR, Article 58 (2) (b) of the GDPR provides as
follows:
‘Each supervisory authority shall have all of the following corrective powers:
(...)
(b) to issue reprimands to a controller or a processor where processing
operations have infringed provisions of this Regulation; (...)”
Recital 148 of the GDPR states:
‘In a case of a minor infringement or if the fine likely to be imposed would constitute a
disproportionate burden to a natural person, a reprimand may be issued instead of a fine.
Due regard should however be given to the nature, gravity and duration of the
infringement, the intentional character of the infringement, actions taken to mitigate the
damage suffered, degree of responsibility or any relevant previous infringements, the
manner in which the infringement became known to the supervisory authority,
compliance with measures ordered against the controller or processor, adherence to a
code of conduct and any other aggravating or mitigating factor..’
In accordance with the evidence available, the infringement in question is considered to
be minor for the purposes of Article 83 (2) of the GDPR, given that in the present case it
was a specific case, as a result of a one-off error (of which there are no similar records
in this Agency), which would have already been corrected, which makes it possible to
consider a reduction in fault in the facts, and it is therefore considered to be lawful not to
impose a penalty consisting of an administrative fine and to replace it by issuing a
reprimand.
Therefore, in accordance with the applicable legislation and assessing the criteria for
graduation of penalties established,
the Director of the Spanish Data Protection Agency DECIDES TO:
FIRST: Issue GLOVOAPP23, S.. L., with VAT B66362906, for an infringement of Article
12 of the GDPR, as set out in Article 83 (5) of the GDPR, a reprimand.
SECOND: Notify this resolution to GLOVOAPP23, S.L.
In accordance with Article 50 of the LOPDGDD, this Resolution will be made public once
it has been notified to the interested parties.
In accordance with Article 48.6 of the LOPDGDD, and in accordance with Article 123 of
the LPACAP, interested parties may, by way of option, lodge an appeal against this
decision with the Director of the Spanish Data Protection Agency within one month of
the day following notification of this decision or direct administrative appeal to the
Administrative Appeals Chamber of the National High Court. in accordance with Article
25 and paragraph 5 of the Fourth Additional Provision of Law 29/1998 of 13 July on
Administrative Jurisdiction, within two months of the day following notification of this act,
as provided for in Article 46 (1) of that Law.
Finally, we would point out that, in accordance with Article 90.3 (a) of the LPACAP, the
final administrative decision may be suspended as a precautionary measure if the
interested party indicates their intention to lodge an administrative appeal. If this is the
case, the interested party must formally inform the Spanish Data Protection Agency of
this fact by submitting it via the Agency’s electronic register
[https://sedeagpd.gob.es/sede-electronica-web/] or through one of the other registers
provided for in Article 16.4 of Law 39/2015 of 1 October. It shall also forward to the
Agency the documentation proving that the administrative appeal has actually been
lodged. If the Agency is not aware of the lodging of the administrative appeal within two
months of the day following notification of this decision, it shall terminate the provisional
suspension.
938-050522
Mar España Martí
Director of the Spanish Data Protection Agency