AEPD (Spain) - PS/00405/2019

AEPD - PS/00405/2019
Authority:	AEPD (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 13 GDPR
Type:	Complaint
Outcome:	Upheld
Decided:
Pub lished:||n/a
Fine:	EUR
Parties:	...
National Case Number:	PS/00405/2019
European Case Law Identifier	n/a
Appeal:	n/a
Original Language:	Spanish
Original Source:	AEPD (in ES)

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English Machine Translation of the Decision

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

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936-031219
Product No.: PS/00405/2019
DECISION R/00011/2020 ON TERMINATION OF PROCEEDINGS FOR PAYMENT
VOLUNTEER
In sanction procedure PS/00405/2019, conducted by the Agency
Spanish Data Protection Agency to VODAFONE ESPAÑA, S.A.U., in view of the complaint
presented by A.A.A., and based on the following,
BACKGROUND
FIRST: On November 28, 2019, the Director of the Spanish
of Data Protection agreed to initiate sanctioning proceedings against VODAFONE
SPAIN, S.A.U. (hereinafter, the claimed), by means of the Agreement which is transcribed:
<<
Product No.: PS/00405/2019
935-240719
AGREEMENT TO INITIATE DISCIPLINARY PROCEEDINGS
Of the actions carried out by the Spanish Agency for the Protection of
Data and based on the following:
FACTS
FIRST: Mrs. A.A.A. (hereinafter, the Claimant) dated May 16, 2019
filed a complaint with the Spanish Data Protection Agency. The
claim is directed against VODAFONE ESPAÑA, S.A.U. with NIF A80907397 (in
go ahead, the one claimed). The grounds on which the claim is based are that on
February 2019 received an e-mail from the respondent informing about the billing of a
line that claims not to have hired. In spite of the steps taken, he has not
received adequate response to the situation of the alleged recruitment.
C/ Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es
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The complainant provides the messages sent to the respondent and received from
this one.
It provides receipts for bank charges.
SECOND: In view of the facts denounced in the complaint and the
documents provided by the complainant, the Subdirectorate General for the Inspection of
Data proceeded to the realization of previous research actions for the
clarification of the facts in question under the powers of investigation
granted to the inspection authorities in Article 57(1) of the Regulation (EU)
2016/679 (General Data Protection Regulations, hereinafter referred to as GPRD), and
in accordance with the provisions of Title VII, Chapter I, Section Two of the Act
Organic 3/2018 of 5 December on the Protection of Personal Data and Guarantee of
digital rights (hereinafter LOPDGDD).
As a result of the investigation carried out, it was found that
that the person responsible for the processing is the one who is being claimed.
The following points are also noted:
This body has transferred this complaint to the defendant, with
dates July 15 and October 4, 2019, it is stated that July 18 and October 7
of the same year, not having responded to the requirements of this Agency.
In the messages sent by the complaining party to the complainant, the
he notes:
That the respondent sent an e-mail to the complainant stating that
you would receive an invoice for your line.
Charges to your bank account in connection with that line.
Answer to the claimant in which he states that at the time
a line was active in the same address where he lived
previously the claimant, but under the ownership of another person.
THIRD: According to the documentation in the file, it is accredited
that the respondent carried out the processing of the personal data of the claimant without her
consent. The claimant's personal data were recorded in the
files and were treated for the issuance of invoices for services
associated with the person claimed.
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28001 - Madrid sedeagpd.gob.es
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LEGAL FOUNDATIONS
I
By virtue of the powers conferred on each individual by Article 58(2) of the GPRS, the
supervisory authority, and as established in Articles 47 and 48 of the LOPDGDD,
the Director of the Spanish Data Protection Agency is competent to initiate
and to resolve this procedure.
II
Article 58 of the RGPD, "Powers", says:
"2 Each supervisory authority shall have all the following powers
corrections indicated below:
(…)
(b) sanction any person responsible for or in charge of the processing with a warning
where processing operations have infringed the provisions of this
Regulations;
(...)
(d) instruct the controller or processor to ensure that the processing operations
treatment are in accordance with the provisions of this Regulation, where applicable,
in a certain way and within a specified time frame.
(…)
(i) to impose an administrative fine pursuant to Article 83, in addition to or in place of
measures referred to in this paragraph, depending on the circumstances of the case
particular
(…)”
III
Article 5 of the RGPD deals with the principles that should govern the
processing of personal data and mentions among them that of "lawfulness, loyalty and
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28001 - Madrid sedeagpd.gob.es
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transparency". The precept states:
"1. Personal data shall be:
(a) processed in a lawful, fair and transparent manner in connection with
interested (<<lawfulness, loyalty and transparency>>);"
Article 6 of the RGPD, "Lawfulness of processing", details in its paragraph 1 the
cases in which the processing of third party data is considered lawful:
"1. Processing shall be lawful only if at least one of the following conditions is met
conditions:
(a) the data subject has given his consent to the processing of his data
personal for one or more specific purposes;
(b) processing is necessary for the performance of a contract in which the
interested is a party to or for the application at his request of measures
pre-contractual;
(…)”
The infringement for which the claimed entity is held responsible is
Article 83 of the RGPD which, under the heading "General conditions for
the imposition of administrative fines," he says:
“5. Infringements of the following provisions shall be penalised, in accordance with
with paragraph 2, with administrative fines of up to EUR 20 000 000 or,
in the case of a company, for an amount equivalent to a maximum of 4% of
total annual turnover for the previous financial year, opting for
the largest:
(a) The basic principles for treatment, including the conditions for
consent under Articles 5, 6, 7 and 9.
The Organic Law 3/2018, on the Protection of Personal Data and Guarantee of
Digital Rights (LOPDGDD) in its article 72, under the heading "Infringements
considered to be very serious," he says:
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"1. In accordance with the provisions of Article 83(5) of the Rules of Procedure (E.U.)
2016/679 are considered very serious and will prescribe after three years the infringements that
constitute a substantial infringement of the articles mentioned in that
In particular, the following:
(…)
b) The processing of personal data without any
conditions for the lawfulness of processing laid down in Article 6 of
Regulation (EU)2016/679.
IV
The documentation in the file provides evidence that the
Article 6.1 of the RGPD, since it dealt with the
personal data of the claimant without her consent. The personal data of the
were incorporated into the company's information systems, without
has provided evidence that it had his consent to the collection and processing
of your personal data.
The Contentious-Administrative Chamber of the National Court, in cases
like the one here, has considered that when the data owner denies
the burden of proof is on the person claiming its existence
the data controller of third parties must collect and keep the
documentation necessary to prove the consent of the owner. We quote, for
All, SAN of 31/05/2006 (Rec. 539/2004), Fundamento de Derecho Cuarto.
The complainant's personal data were recorded in the files of the
claimed and were treated for the issuance of invoices for services associated with the
complainant. Consequently, it has carried out a processing of the data
personal without proof of consent
for treatment, not to mention legal authorization.
However, and this is the essential point, the claimed does not prove the legitimacy to
the processing of the claimant's data.
In short, the respondent has not provided any document or evidence
any evidence that the entity, in such a situation, would have deployed the
minimum diligence required to verify that your interlocutor was indeed the one
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he claimed to hold.
Respect for the principle of legality which is at the heart of the fundamental right
of personal data protection requires proof that the
The controller took the necessary steps to prove that the
extreme. If this is not done - and if it is not demanded by this Agency, which is responsible for ensuring
for the compliance with the regulations of the data protection law of
personal nature - the result would be to empty the principle of legality of its content.
V
In order to determine the administrative fine to be imposed, the
provisions of articles 83.1 and 83.2 of the RGPD, which are the provisions that indicate:
"Each supervisory authority shall ensure that the imposition of fines
administrative offences under this Article for violations of this
Regulation referred to in paragraphs 4, 9 and 6 are in each individual case
effective, proportionate and dissuasive.
"Administrative fines shall be imposed, depending on the circumstances of
each individual case, in addition to or instead of the measures referred to in
Article 58(2)(a) to (h) and (j) In deciding to impose a fine
and its amount in each individual case will be duly taken into account:
(a) the nature, gravity and duration of the infringement, taking into account the
nature, scope or purpose of the processing operation concerned
as well as the number of stakeholders affected and the level of damage and
damages they have suffered;
(b) the intentional or negligent nature of the infringement;
(c) any action taken by the controller or processor
to mitigate the damages suffered by those concerned;
(d) the degree of responsibility of the person responsible for or in charge of the
treatment, taking into account any technical or organisational measures
applied under Articles 25 and 32;
(e) any previous offence committed by the person responsible for or in charge of the
treatment;
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(f) the degree of cooperation with the supervisory authority in order to put
remedy the infringement and mitigate the possible adverse effects of the infringement;
(g) the categories of personal data affected by the infringement;
(h) the manner in which the supervisory authority became aware of the infringement,
in particular whether the person responsible or the person in charge notified the infringement and, in such
case, to what extent;
(i) where the measures referred to in Article 58(2) have been
ordered in advance against the person responsible or the person in charge
in relation to the same matter, compliance with those measures;
(j) adherence to codes of conduct under Article 40 or to mechanisms
of certification approved in accordance with Article 42, and
(k) any other aggravating or mitigating factor applicable to the circumstances of the
case, such as the financial benefits obtained or the losses avoided, directly
or indirectly, through the infringement."
With respect to section 83.2 (k) of the RGPD, the LOPDGDD, section 76,
"Sanctions and corrective measures," he says:
"In accordance with Article 83(2)(k) of Regulation (EU) 2016/679
may also be taken into account:
(a) the continuing nature of the infringement
(b) The link between the activity of the offender and the processing of data
personal.
(c) The profits obtained as a result of the commission of the offence.
(d) the possibility that the conduct of the person concerned might have led to the commission of
the infraction.
(e) The existence of a merger by absorption process subsequent to the commission of the
infringement, which cannot be attributed to the acquiring entity.
(f) Affecting the rights of minors.
g) To have, when it is not compulsory, a data protection delegate.
h) The submission by the person responsible or in charge, on a voluntary basis, to
alternative dispute resolution mechanisms, in those cases where
there are disputes between them and any interested party."
In accordance with the precepts transcribed, and without prejudice to what may result from the
proceedings, for the purpose of setting the amount of the fine to be imposed
in the present case, the party complained of is considered to be responsible for an infringement
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As defined in article 83.5.a) of the RGPD, in an initial evaluation, the following are considered to be concurrent
the following factors.
As aggravating factors the following:
- In the present case we are dealing with an unintentional negligent action, but
identified significant (Article 83(2)(b)).
- Basic personal identifiers are affected (name, a number of
identification, the line identifier) (Article 83(2)(g)).
Therefore, it is considered appropriate to graduate the penalty to be imposed on the defendant and
set it at the amount of 100,000 euros for the infringement of Article 6.1 of the RGPD.
Therefore, in view of the above,
By the Director of the Spanish Data Protection Agency,
AGREED:
1. Initiate disciplinary proceedings against VODAFONE ESPAÑA, S.A.U,
with NIF A80907397, for the alleged infringement of Article 6.1. of the RGPD
as defined in article 83.5.a) of the aforementioned RGPD.
To appoint Mr. B.B.B. as instructor and Ms. C.C.C. as secretary,
indicating that either of them may be challenged, if appropriate, in accordance with
The provisions of Articles 23 and 24 of Law 40/2015 of 1 October on
Public Sector Legal System (LRJSP).
1. INCORPORATE into the sanctioning file, for evidentiary purposes, the
claimant and its accompanying documentation, the
information requirements that the Subdirectorate General for the Inspection of
Data was sent to the complained entity in the preliminary investigation phase and its
respective acknowledgements of receipt.
2. THAT for the purposes of Article 64.2 b) of Law 39/2015, of 1
October, of the Common Administrative Procedure of the Administrations
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100,000 (one hundred thousand euros), which would be a fine of
euros), without prejudice to the outcome of the investigation.
3. NOTIFY this agreement to VODAFONE ESPAÑA, S.A.U., with NIF
A80907397, giving you a hearing period of ten working days to
make the allegations and submit the evidence he deems appropriate.
In your pleading, you must provide your tax identification number and the number of
procedure set out in the heading of this document.
If you do not make representations to this initiating agreement within the stipulated time limit, it
may be considered as a motion for resolution, as set out in Article
64.2(f) of Law 39/2015 of 1 October on the Common Administrative Procedure of
the Public Administration (hereinafter LPACAP).
In accordance with Article 85 of the LPACAP, if the
penalty to be imposed other than a fine, may acknowledge its responsibility within the
period granted for the formulation of arguments to the present agreement of beginning; the
which will be accompanied by a 20% reduction in the penalty to be imposed in
the present procedure. With the application of this reduction, the sanction would be
80,000, with the procedure being resolved by the imposition of this
sanction.
Similarly, at any time prior to the resolution of this
procedure, carry out the voluntary payment of the proposed penalty, which
will result in a 20% reduction in its amount. With the application of this reduction,
80,000 and its payment will result in the termination of the
procedure.
The reduction for the voluntary payment of the penalty is cumulative with that for
apply for recognition of liability, provided that this recognition
of the responsibility becomes apparent within the time allowed for formulating
allegations to the opening of the procedure. The voluntary payment of the amount referred to
in the preceding paragraph may be made at any time prior to the resolution. At
in this case, if both reductions were to be applied, the amount of the penalty would be
set at 60,000 euros.
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In any case, the effectiveness of either of the two above-mentioned reductions will be
conditional upon the withdrawal or waiver of any action or remedy in the
administrative sanction against the sanction.
If you choose to proceed with the voluntary payment of any of the amounts
80,000 or 60,000 euros, you must pay it
by depositing it in the account nº ES00 0000 0000 0000 0000 open to
name of the Spanish Data Protection Agency at CAIXABANK Bank,
S.A., indicating in the concept the reference number of the procedure in
the heading of this document and the reason for the reduction in the amount to which
welcomes.
Likewise, you must send the proof of admission to the Subdirectorate General of
Inspection to continue the procedure in accordance with the quantity
admitted.
The procedure will last a maximum of nine months from the
date of the agreement to initiate or, where appropriate, the draft agreement to initiate.
Once this period has elapsed, the agreement will expire and, consequently, the
actions; in accordance with the provisions of Article 64 of the LOPDGDD.
Finally, it is noted that in accordance with Article 112.1 of the LPACAP,
No administrative appeal is possible against this act.
Mar Spain Martí
Director of the Spanish Data Protection Agency
>>
SECOND : On December 24, 2019, the claimant has proceeded to the payment of
the penalty in the amount of 60 000 euros by making use of the two reductions
provided for in the above transcribed Agreement, which implies the
recognition of responsibility.
THIRD: The payment made, within the period granted for making allegations to
the opening of the procedure, entails the waiver of any action or appeal in
administrative sanctioning and acknowledgement of responsibility in relation to
the facts referred to in the Agreement to Initiate.
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LEGAL FOUNDATIONS
I
By virtue of the powers conferred on each authority in Article 58(2) of the GPRS, the
control, and in accordance with Article 47 of Organic Law 3/2018, of 5
December, Protection of Personal Data and Guarantee of Digital Rights (in
(hereinafter LOPDGDD), the Director of the Spanish Data Protection Agency
is competent to penalise infringements committed against it
Regulations; infringements of Article 48 of Law 9/2014 of 9 May, General
of Telecommunications (hereinafter referred to as LGT), in accordance with the
Article 84.3 of the GLT, and the infractions defined in articles 38.3 c), d) and i) and
38.4 d), g) and h) of Law 34/2002, of 11 July, on services of the company of the
information and electronic commerce (hereinafter referred to as the ISESA), as provided for in
43.1 of the said Act.
II
Article 85 of Law 39/2015 of 1 October on Administrative Procedure
Commonwealth of Independent States (hereinafter LPACAP), under the heading
"Termination in sanctioning proceedings" provides the following:
"1. Penalty proceedings are initiated if the offender acknowledges his
responsibility, the procedure may be resolved with the imposition of the penalty
as appropriate.
2. Where the penalty is solely pecuniary in nature or where it is
impose a financial penalty and a non-pecuniary penalty but has been justified
the impropriety of the second, voluntary payment by the alleged perpetrator, in
any time before the resolution, will imply the termination of the procedure,
except as regards the restoration of the altered situation or the determination of the
compensation for damages caused by the commission of the infringement.
3. In both cases, when the penalty is solely of a pecuniary nature,
the body competent to decide on the procedure shall apply reductions of, at
at least 20 % of the amount of the proposed penalty, which may be cumulated
with each other. These reductions shall be determined in the notification of
initiation of the procedure and its effectiveness shall be conditional upon the withdrawal or
waiver of any action or appeal in administrative proceedings against the sanction.
The percentage of reduction provided for in this paragraph may be increased
by regulation.
In accordance with the above,
the Director of the Spanish Data Protection Agency RESOLVES:
FIRST: TO DECLARE the termination of procedure PS/00405/2019, of
in accordance with Article 85 of the LPACAP.
SECOND: TO NOTIFY this resolution to VODAFONE ESPAÑA, S.A.U.
In accordance with the provisions of article 50 of the LOPDGDD, this
The decision will be made public once it has been notified to the interested parties.
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Against this resolution, which puts an end to the administrative procedure as prescribed by
Article 114(1)(c) of Law 39/2015 of 1 October on Administrative Procedure
The interested parties may lodge an appeal with the
administrative litigation before the Administrative Chamber of the
Audiencia Nacional, in accordance with Article 25 and paragraph 5 of
the fourth additional provision of Law 29/1998 of 13 July 1998, regulating the
Contentious-Administrative Jurisdiction, within two months of
day following notification of this act, as provided for in Article 46(1) of
referred to Law.
Mar Spain Martí
Director of the Spanish Data Protection Agency
C/ Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es