APD/GBA (Belgium) - 71/2020
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| APD/GBA - 71/2020 | |
|---|---|
 | |
| Authority: | APD/GBA (Belgium) |
| Jurisdiction: | Belgium |
| Relevant Law: | Article 4(1) GDPR Article 6(1) GDPR |
| Type: | Complaint |
| Outcome: | Partly Upheld |
| Started: | |
| Decided: | 30.10.2020 |
| Published: | 30.10.2020 |
| Fine: | None |
| Parties: | n/a |
| National Case Number/Name: | 71/2020 |
| European Case Law Identifier: | n/a |
| Appeal: | n/a |
| Original Language(s): | Dutch |
| Original Source: | Gegevensbeschermingsautoriteit (in NL) |
| Initial Contributor: | Enzo Marquet |
The Belgian DPA (APD/GBA) sanctioned the defendant for publishing videos in which the neighbour's house and the neighbour's contact details are clearly visible in violation of Article 6(1) GDPR.
English Summary
Facts
The subject of the complaint concerns the online publication of visual material on YouTube in which the home, more specifically the fireplace of local residents who use a wood fire, is portrayed with the name and address of the occupant of the home in question.
Dispute
Does the publication of a film with the name and address of the person infringing the legislation on emissions in itself constitute a violation of the privacy legislation?
Holding
The DPA wishes to clear up any possible confusion in this respect. The publication of a photograph/film of a fireplace as such does not involve the processing of personal data to which the privacy legislation would apply, but that, on the other hand, personal data are processed as soon as the film is published together with the name and address of the person concerned and that, in the present case, such publication can only take place with permission.
The DPA clarifies that although the concept of personal data is to be understood broadly, and includes any data by which a natural person can be identified, a video recording of just a chimney on which the emission of smoke can be seen without in any way enabling a person to be identified is not personal data. That video recording of the fireplace, on the other hand, does become personal data as soon as the identification of the natural person is mentioned.
The DPA finds that the publication as a whole, being the film together with the name and address of the complainant, constitutes a processing of personal data within the meaning of Article (4)(1) GDPR, whereby the principles of data protection must apply to any data relating to an identified or identifiable natural person. The publication of the video recording is indistinguishable from the name and address of the complainant. The video recording as well as the name and address of the complainant have been published precisely for the purpose of identification.
A processing of personal data is lawful only if there is a legal basis for doing so. Neither Article 6(1)(d) nor Article 6(1)(e) can be used as a legal basis. The DPA researches if Article 6(1)(f) can be used as a legal basis: In order to be able to invoke the lawfulness of the "legitimate interest" in accordance with Article 6(1)(f), the data controller must in other words demonstrate that:
- the interests it pursues with the processing can be recognized as legitimate (the "purpose test");
- the intended processing is necessary to achieve these interests (the "necessity test"); and
- weighing these interests against the interests, fundamental freedoms and fundamental rights of data subjects weighs up in favour of the data controller (the "balancing test").
With regard to the first condition (the so-called "purpose test"), the DPA considers that the purpose of demonstrating the seriousness of the nuisance caused by wood smoke emissions and its impact on the health of local residents must be considered to have been carried out in view of a legitimate interest. The interest pursued by the defendant as the person responsible for processing can be considered justified in itself in accordance with Recital 47 GDPR. Consequently, the first condition contained in Article 6(1)(f) is met.
In order to meet the second condition, it must be demonstrated that the processing is necessary to achieve the objectives pursued. This means in particular that the question must be asked whether the same result can be achieved by other means without processing personal data or without unnecessarily intrusive processing for the data subjects.
The information that the defendant collects and shares to draw attention to the harmful effects of wood smoke emission without proceeding to the processing of personal data, is entirely within the scope of the objective pursued. However, the publication of visual material with the name and address of the complainant only leads to the person concerned being labelled as an air pollutant in a digital manner without any possibility of defence. This method of working does not offer any added value in the fight against wood smoke emission and the protection of citizens against it. The DPA considers that even without publication of the images containing the complainant's identification data, this purpose can be achieved by mentioning only the region where the smoke emission is located, so that a citizen living in that region may be able to bring a civil action against strangers. The second condition is thus not met because the principle of minimum data processing Article 5(1)(c) was not respected.
For the third condition to be met, reasonable expectation must be considered. The DPA can only determine that the complainant could at no time expect the publication of the images with his name and address nor did the defendant at any time ask for permission, Article 6(1)(a) to publish its his personal data.
As such, the DPA decides that this constitutes a violation of Article (6)(1) GDPR
Comment
The Market Court established that the DPA is an administrative authority and not a court, and the DPA itself has developed further procedures and - in its decision 17/2020[1] and in DPA policy documents[2] - has further explained the essence of its function.
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
1/27
Litigation chamber
Decision on the merits 71/2020 of October 30, 2020
File number: DOS-2018-07299
Subject: Online publication of real estate images with
associated address and name of resident
The Disputes Chamber of the Data Protection Authority, composed of Mr Hielke
Hijmans, chairman and Messrs. Dirk Van Der Kelen and Jelle Stassijns, members;
Having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of
personal data and on the free movement of such data and repealing Directive
95/46 / EC (General Data Protection Regulation), hereinafter GDPR;
In view of the law of 3 December 2017 establishing the Data Protection Authority, hereinafter
WOG;
Having regard to the rules of internal procedure, as approved by the Chamber of
Representatives on December 20, 2018 and published in the Belgian Official Gazette on
January 15, 2019;
Considering the documents in the file;
.
.
. Decision on the merits 71/2020 - 2/27
has taken the following decision regarding:
- The complainant: Mr X
- The defendant: Mr. Y
1. Facts and procedure
1. On March 18, 2019, the complainant files a complaint with the Data Protection Authority, hereinafter
GBA, against the defendant.
The subject of the complaint concerns the online publication of visual material on YouTube where
the house, more specifically the chimneys of local residents who use a wood fire
is brought, including the name and address of the occupant of the house in question
will be mentioned.
2. On 28 March 2019, the complaint is declared admissible on the basis of Articles 58 and 60 of
the WOG, the complainant will be informed of this on the basis of art. 61 WOG and the complaint becomes
on the basis of art. 62, §1 WOG submitted to the Disputes Chamber.
3. On April 17, 2019, the Disputes Chamber will decide on the basis of art. 95, §1, 1 ° and art. 98 WOG that it
file is ready for treatment on the merits.
4. On April 18, 2019, the parties concerned will be notified by registered mail
the provisions as stated in article 95, §2, as well as those in art. 98 WOG. The
parties involved on the basis of art. 99 WOG of the deadlines to their
file defenses. The deadline for receiving the reply from
the complainant was recorded on 7 October 2019 and 7 November 2019 for the defendant.
5. On April 26, 2019, the Disputes Chamber will receive the notification from the defendant that he has the
does not accept intervention of the Disputes Chamber and he wishes to appeal to it
Marktenhof against the decision of the Disputes Chamber that the file is ready for processing
on the merits. To this end, he encloses the letter dated April 23, 2019, addressed to the chairman of
the Marktenhof with the motivation for the objection.
The defendant argues that the Dispute Chamber draws up a conclusion agenda without filing it
of pieces of conviction.
He also indicates that he does not accept to be pressured by the Primary Care Service with
a large fine without being notified of any substantive complaint. This would make Substance Decision 71/2020 - 3/27
have shown partiality and allegedly acted in violation of the internal regulations
order of the GBA.
The defendant also states that the complainant has lodged a complaint with
the Public Prosecution Service in [..]. The defendant then asks for both files to be put together
join and have it handled by the court in [..].
Furthermore, the defendant reports to the Disputes Chamber that he has taken note of the
letter from the Disputes Chamber dated April 18, 2019, he requests a copy of the file (art.
95, §2, 3 ° WOG) and electronically accepts all communication regarding the case (art. 98, 1 °
WOG).
6. On 10 May 2019, the Disputes Chamber will receive on the one hand from the Court of Appeal in Brussels
the notification of the petition regarding Y c / DATA PROTECTION AUTHORITY,
deposited at the Registry of the Court and, on the other hand, the request for transmission of the
legal file in accordance with Article 723 of the Judicial Code.
7. On 15 May 2019, following the request for submission of the case file,
the documents forwarded to the Court.
8. On 20 May 2019, the registry of the Brussels Court of Appeal will notify the Disputes Chamber
the case at the hearing of May 15, 2019 was postponed to May 22, 2019 for settlement of the
conclusion calendar and pleading date.
9. A copy of the file will be sent to the defendant on 21 May 2019. In it
the defendant also informed that a decision of the Dispute Chamber
is enforceable from stock and therefore the proceedings before the Dispute Chamber will be continued.
10. On May 24, 2019, the defendant will notify the Disputes Chamber of the receipt of the
bundle of documents and reiterates his opposition to the continuation of the proceedings for the
Litigation chamber.
11. After an exchange of several documents, the Registry of the Brussels Court of Appeal reports
on May 27, 2019 by e-mail to the Disputes Chamber that the case was closed on May 22, 2019
postponed to May 29, 2019 to determine closing deadlines. This message will receive the
Disputes Chamber also by ordinary letter on 5 June 2019.
12. On 28 May 2019, the defendant submits his conclusions to the Disputes Chamber, which he
has drawn up in the context of his appeal with the Marktenhof. The elements of being
appeals can be summarized as follows: Decision on the merits 71/2020 - 4/27
The filming of wood smoke with the indication of personal data is necessary to protect the vital
to protect the interests of the data subject or of another natural person. The
respondent refers to article 6.1 for this. d) and e) GDPR and article 8 of the European
Convention on Human Rights.
According to the defendant, the GBA is claiming the removal of “a video recording” without any
to provide evidence evidencing the publication of personal data. Moreover
the defendant states that the complainant in his request for information dated 20 December 2018 to the
GBA mentions the URL of only one video recording, although three video recordings were
made from the smoke emission from the complainant's wood-burning stove. The defendant argues
in that it is unclear to him which recording he should delete.
The GBA would not have provided him with any clarification about this.
On the basis of internal email exchange between two employees of the GBA, the
defendant to argue that:
a) No infringement was found on 21 February 2019;
b) The GBA would be a first-line service that cannot take any further steps. Also
the complainant would be advised by the Frontline Service to formally file a complaint
serve;
c) Apparently it would be desirable to avoid sending the file to inspection.
13. An introductory session will take place at the Marktenhof on 29 May 2019. The
Data protection authority is not present.
14. On June 12, 2019, the Marktenhof will pass judgment.
The judgment contains the following points for attention regarding the assessment of the
subject of the petition:
Requirement of impartiality of the GBA Disputes Chamber
The Marktenhof has established that the complaint was submitted on the basis of advice issued to that end
the complainant were remitted by the GBA's First Line Service. So there is no spontaneous
complaint, the complaint was submitted after advice on this from the GBA.
The Marktenhof further states that the complainant received the notification from the GBA that the publication
of a movie (stating the name and address of the person who committed the infringement
on emissions legislation) is not in itself a violation of the
privacy legislation, but that “such a publication […] only with permission
[seems] to happen ”.
1 The full text of the judgment is available on the website of the Data Protection Authority at the following link:
https://www.gegevensbeschermingingsautoriteit.be/publications/arrest-van-12-juni-2019-van-het-markthof.pdf Decision on the merits 71/2020 - 5/27
Subsequently, the Marktenhof notes that there is an e-mail address “contact” within the GBA via
which contacts are made with persons who believe they can be hurt and
whereby an employee of the GBA's First Line Service is proactive in completing
request a complaint form. This leads the Marktenhof to argue that the circumstance
that certain employees of the GBA on the one hand give advice and conduct mail traffic
with persons who think they are offended and that these same employees afterwards, in
the same case, if necessary could act as advisor to the Dispute Chamber
of the GBA or in any other capacity, is subject to criticism and sanction.
Substantive position on the merits of the GBA without complaint and without having the parties
heard
The Marktenhof states that the GBA has already taken a substantive position on the merits
because it was stated in the letter of 31 January 2019: “The GBA therefore expects the
removal of the film as such ”. In a letter of formal notice addressed to the defendant
“One last time the request to remove the film” repeated by the GBA, as well
it was pointed out to him that the GBA itself can sanction violations “with fines
which in certain cases can be very high ”. The Marktenhof also refers to one
advice from a "data protection controls advisor" of the GBA to transfer the file
to the Disputes Chamber of the GBA and to compel the defendant to do so
stop".
This leads the Marktenhof to the conclusion that positions on the merits are based on the
GBA - where later one of its bodies namely the Dispute Chamber as administrative
court will have to rule on whether or not an alleged infringement has been proven -
prima facie does not attest to compliance with all rights of defense (presumption of
including innocence) averse to any appearance of bias or bias.
Decision of the Disputes Chamber that the file is ready for treatment on the merits
Regarding the decision of the Disputes Chamber that the file is ready for processing
has determined a conclusion calendar on the merits and for this purpose, the Marktenhof states that the
Declaring a complaint admissible does not prejudge its assessment. It is a
strict control of the formalism that the file can be handled on the merits and
whereby the Disputes Chamber wishes to deal with the complaint in accordance with Article 94, 3 ° WOG without
first have an investigation carried out by the Inspectorate. It adds to that
Marktenhof allows for a conclusion calendar with each party about one month away
and whereby the defendant obtains the last term in accordance with the rules
of the rights of defense. Decision on the merits 71/2020 - 6/27
Complaint to the Public Prosecution Service in [..] regarding the same facts
With regard to the complaint submitted to the Public Prosecution Service in [..], it points out
Marktenhof on the general principle le criminel tien le civil en état and asks whether there is
There may (still) be cause for the GBA to prosecute a "punishment" of the citizen
when a criminal investigation is already (apparently) underway regarding the same facts. It
Court refers to Articles 95, § 3 and 100, § 2 WOG, on the basis of which may be
assuming that the WOG does not affect this principle.
2
Art. 95. § 1. The disputes chamber decides on the follow-up it gives to the file and is competent:
1 ° decide that the file is ready for consideration on the merits;
2 ° propose a settlement;
3 ° to dismiss the complaint;
4 ° formulate warnings;
5 ° order that the requests of the data subject to exercise his rights be complied with;
6 ° order that the person concerned is informed of the safety problem;
7 ° transfer the file to the public prosecutor of the public prosecutor in Brussels, who informs it of the consequences
that is given to the file;
8 ° decide on a case-by-case basis to publish its decisions on the website of the Data Protection Authority.
§ 2. In the cases mentioned in § 1, 4 ° to 6 °, it shall immediately notify the parties concerned by registered mail
from:
1 ° the fact that a file is pending;
2 ° the content of the complaint, with the exception of the documents proving the identity of the person submitting the complaint
can be derived;
3 ° the possibility of consulting and copying the file at the secretariat of the disputes chamber,
where applicable, with the exception of the documents from which the identity of the person submitting the complaint can be deduced, as well
of the days and hours on which such consultation is possible.
§ 3. If, after application of § 1, 7 °, the Public Prosecution Service refrains from instituting criminal proceedings, an amicable
propose a settlement or mediation in criminal matters referred to in Article 216ter of the Code of Criminal Procedure, or
if the Public Prosecution Service has not taken a decision within a period of six months from the day
upon receipt of the file, the Data Protection Authority decides whether the administrative procedure should be
resume.
Art. 100. § 1. The disputes chamber has the power to:
1 ° to dismiss a complaint;
2 ° order the non-prosecution;
3 ° order the suspension of the judgment;
4 ° propose a settlement;
5 ° to formulate warnings and reprimands;
6 ° order that the requests of the data subject to exercise his rights be complied with;
7 ° order that the person concerned is informed of the safety problem;
8 ° order that the processing be temporarily or permanently frozen, restricted or prohibited;
9 ° order that the processing is brought into conformity;
10 ° the rectification, limitation or deletion of data and the notification thereof to the recipients of the
to order data;
11 ° order the withdrawal of the accreditation of certification bodies;
12 ° to impose penalties;
13 ° impose administrative fines;
14 ° the suspension of cross-border data flows to another State or an international institution
to command; Decision on the merits 71/2020 - 7/27
Conclusion calendar without prior submission of evidence
It follows from Article 98 of the WOG that when the Disputes Chamber decides that the file is ready
for consideration on the merits, the parties concerned must immediately be sent by registered mail
informs you of the provisions as stated in Article 95, § 2 WOG. The Marktenhof
confirms that this legal provision does not require supporting documents
added.
Threat to the citizen with possible sentencing to pay heavy fines
The Marktenhof argues that although the threat is directed to the citizen and where
he is told that he will be able to pay heavy fines
convicted by the GBA, this is not in violation of a legal provision, but by the GBA
the entire manner of acting does at least give the appearance that it will not act impartially.
Right to make video recordings public
The reasons on which the defendant relies, with reference to Articles 6.1. Pine tree
e) AVG that would give him the right to make the video recordings made public
are not an issue, since the Marktenhof is not encompassed by a story against
a "decision" on the merits of the Dispute Chamber.
The Marktenhof decides that new settlement periods must be determined, whereby the first
term for Mr. Y expires at the earliest on the last day of the month commencing after
the parties to the proceedings have become aware of the judgment.
15. Following up on the judgment, the Disputes Chamber will decide on June 26, 2019
determination deadlines.
16. On August 22, 2019, this decision will be reviewed at the request of the defendant. The parties
are notified of the following settlement deadlines:
15 ° transfer the file to the public prosecutor's office in Brussels, who informs it of the consequences
that is given to the file;
16 ° decide on a case-by-case basis to publish its decisions on the website of the Data Protection Authority.
§ 2. If, after application of § 1, 15 °, the public prosecutor refrains from instituting criminal proceedings, an amicable
propose a settlement or mediation in criminal matters referred to in Article 216ter of the Code of Criminal Procedure, or
if the Public Prosecution Service has not taken a decision within a period of six months from the day
upon receipt of the file, the Data Protection Authority decides whether the administrative procedure should be
resume.
3 The Marktenhof states in point 4.7. of the judgment article 6, d) and article 6, e) of the GBA law, but this should be
read as article 6.1. d) and Article 6.1. e) of the GDPR. Decision on the merits 71/2020 - 8/27
The deadline for the defendant's statement of response is set at 5
September 2019;
the deadline for the complainant's reply is set at 5
October 2019;
the deadline for the defendant's reply is set at 4
November 2019.
17. On August 28, 2019, the Disputes Chamber will receive the statement of defense from the
defendant. Respondent reiterates the same elements as put forward in the statement
in its conclusion in the proceedings before the Marktenhof (as summarized above)
and supplement it with the following elements:
The complaint mentions three staff members who are allegedly employed by the GBA
involved in the advice to the complainant.
Make the complaint admissible by the Primary Care Service in addition to the publication
of video images with identifying information of the complainant, including a false Facebook report
profile that would be used by the defendant to spread defamation. The defendant
states that no evidence is provided in this regard. Because the complaint by letter
is declared admissible by the Primary Care Service according to the defendant
its signatories a crime according to Article 66 Sw.
There would be no evidence on file, so the defendant believes that
a decision must be taken to suspend prosecution on the basis of Article 100, § 1, 2 ° WOG.
The lack of mediation, despite the DPA's ability and duty to
mediate and provide constructive advice.
The lack of allotment by registered letter of a final deadline for submission
of a statement of reply by the respondent, in the claims calendar as determined after
the judgment of the Marktenhof. This was rectified, but the defendant claims this
demonstrates that the Disputes Chamber will not act impartially.
The defendant requests compensation, which he estimates at a fixed amount of EUR 25,000.
18. On October 1, 2019, the Disputes Chamber will receive the reply from the complainant. The
The complainant states that the complaint only relates to the unauthorized use of his
name and name of his business “..” on YouTube videos and on its publication on the site
www.z. [..]. The relevant YouTube videos have since been removed. The complainant assumes
that this removal is probably the result of his own request to the YouTube authorities
and by other persons who found this way of publishing indecent. The complainant claims
that at the end of August 2019 the section “..” on www.z. [..] can only be opened with membership to
to prevent an outsider from checking this out. This would be the only section that is private. Decision on the merits 71/2020 - 9/27
19. On November 4, 2019, the Disputes Chamber will receive the statement of defense from the
defendant. The statement of reply fully reiterates that submitted on 28 August 2019
Conclusion of answer. The defendant simply adds that on October 1, 2019, the
The complainant's reply, confirming that the YouTube films
were removed at the hands of the complainant himself. The defendant refers to repeated
written questions he put to the GBA in this regard. So reported the
defendant to the GBA that three video recordings since 15/01/2019 and possibly much earlier, no
more online. The defendant also states that he asked the GBA for clarity
provide information about the deleted video recordings, more specifically because of whose cause these recordings
were removed, but the GBA did not comply.
20. On 20 November 2019, the Disputes Chamber will turn to the Public Prosecutor of the Public Prosecutor
in [..] in order to find out what the current state of affairs is regarding the file submitted by
the Public Prosecution Service is being discussed in order to determine which options the
Dispute Resolution Chamber still has the right to take corrective action if necessary. The Dispute Chamber
refers to article 229, §2 of the law of 30 July 2018 on protection
of natural persons with regard to the processing of personal data, that the
following stipulates:
“Art. 229. § 1 […]
§ 2. In the absence of a protocol and for the infringements referred to in Articles 222 and 223, disposes of
the public prosecutor over a period of two months from the day of
receipt of the original official report, to be communicated to the competent supervisory authority
to share that a criminal investigation or a judicial investigation has been started or prosecution
was set. This notice cancels the possibility for the supervisor
authority to exercise its corrective powers.
The competent supervisory authority cannot impose a sanction before the expiry of this one
term. In the absence of notification from the public prosecutor within two months,
the facts can only be punished administratively. "
21. On January 30, 2020, the Disputes Chamber will submit its letter dated November 20, 2019
reminder at the Public Prosecutor's Office in [..]. On the same date, the
informed the parties of the letter addressed to the Public Prosecutor in order to inform them
inform about the handling of the file.
22. Also on January 30, 2020, the complainant reports that he has received the message from the Disputes Chamber regarding
received the letter to the Public Prosecution Service. He also reports that the defendant now
deleted the corresponding movies with name. Decision on the merits 71/2020 - 10/27
23. On April 24, 2020, the Public Prosecution Service announces that the acts are not punishable because they are not a crime
and for this reason it was decided to close the file without further action.
24. On June 19, 2020, the defendant responds to the notice of the Disputes Chamber regarding the
write to the Public Prosecution Service. According to the defendant, file X would be examined by a
investigating judge. The defendant further insists that the Dispute Chamber file the file
takes into account the comments of the Marktenhof, as well as that the
The litigation chamber would conduct a screening on the ownership and use of wood burning stoves at all
employees of the GBA and ensure that users of wood-burning stoves are aware
to remember.
25. On 9 October 2020, the Parties will be notified that under Article 52 of the
rules of internal procedure a hearing will take place on October 26, 2020.
26. On October 26, 2020, the parties will be heard by the Disputes Chamber. The defendant, though
duly summoned, did not appear. The complainant explains his complaint during the hearing.
No elements other than those that already form part of the
file. After this, the debates are closed.
27. On 27 October 2020, the minutes of the hearing will be presented to the parties
in accordance with Article 54 of the internal rules. The Disputes Chamber has none
received comments regarding the official report.
1. Legal basis
Personal data Decision on the merits 71/2020 - 11/27
Article 4.1) GDPR
For the purposes of this Regulation:
1) “personal data” means any information about an identified or identifiable natural person
person ('the data subject'); an identifiable natural person is considered to be directly
or be identified indirectly, in particular by means of an identifier such as a name,
an identification number, location data, an online identifier or one or more elements that
characteristic of the physical, physiological, genetic, psychological, economic, or cultural
social identity of that natural person;
[…]
Lawfulness of the processing
Article 6.1. AVG
1. The processing is only lawful if and insofar as at least one of the following
conditions are met:
a) the data subject has consented to the processing of his personal data for
one or more specific purposes;
b) the processing is necessary for the performance of a contract with which the data subject
party, or to take measures at the request of the data subject prior to the conclusion of an agreement
take;
c) the processing is necessary to comply with a legal obligation on the
controller rests;
d) the processing is necessary for the vital interests of the data subject or of another
protect a natural person;
e) processing is necessary for the performance of a task carried out in the public interest or for a task
in the exercise of official authority vested in the controller
commissioned;
f) the processing is necessary for the representation of the legitimate interests of the
controller or of a third party, except when the interests or fundamental rights and
the fundamental freedoms of the data subject requiring the protection of personal data,
outweigh those interests, especially if the data subject is a child. The first paragraph,
point f) does not apply to processing by public authorities in the exercise of
their duties.
2. Justification
a) Procedure Decision on the merits 71/2020 - 12/27
Preliminary remark
28. This case is the follow-up to the first judgment of the Marktenhof in a case against the
Data Protection Authority (GBA), taken very shortly after the appointment of the members of
this authority and at a time when the proceedings before the Dispute Chamber and - still
more importantly - the cooperation between the GBA and the Marktenhof still had to be developed
come.
This manifests itself in the following circumstances:
- The defendant's actual objections to the internal procedures at the GBA date from
a period prior to a reorganization involving the duties of the various
organs of the GBA are also organisationally demarcated.
- The respondent's appeal to the Marktenhof concerns an interim decision by the
Litigation chamber to hear a case on the merits. Meanwhile, the Dispute Chamber
developed a practice in which it assumes that such an interim decision - in which
it is decided to deal with the case on the merits - only one step in the procedure is,
against which in principle there is no appeal.
- The absence of the GBA at the opening session of May 29, 2019 is explained by
this was the first time that an appeal against the GBA (Disputes Chamber) had been lodged with the
Marktenhof and the collaboration still had to take shape.
29. In the meantime, the Marktenhof has determined that the Disputes Chamber is an administrative authority
is not a judicial body and the Dispute Chamber itself has developed further procedures
and has - including in its decision 17/2020 and in policy documents of the GBA - the 5
the essence of its function.
Defendant's position and judgment of the Dispute Chamber
30. The defendant puts forward a number of arguments from which it appears that the proceedings have a number of
deficiencies, in particular as regards, on the one hand, the requirement of impartiality
of the GBA and on the other hand respect for the right of defense.
Mediation procedure
4
Decision on the merits 17/2020 of April 28, 2020
5 Strategic Plan 2020-2025 and Management Plan 2020 Decision on the merits 71/2020 - 13/27
31. First, the defendant argues that the manner in which the file is dealt with by the
Front-line service is not impartial. The defendant rightly points out that the task of
the First-line service on receipt of a request consists in the first instance of mediating
to perform. Since the complainant did not initially file a complaint, but only submitted a request
the GBA by means of the central address contact@apd-gba.be from which all e-mails
addressed to the GBA during a first contact (including all subsequent communication with the
First-line service takes place via the same e-mail address) are distributed to the competent service
within the GBA, the request was submitted to the Primary Care Service. It is then first of all the
6
task of the Primary Care Service to investigate whether the request pursuant to Article 60 of the WOG
is admissible to then proceed to the
treatment thereof on the basis of Article 62, § 2, paragraph 1 WOG.
32. It is clear from the documents in the file that the Primary Care Service made use of
its authority to initiate a mediation procedure (Article 22, § 1, 2 ° WOG) because
the defendant was contacted. Prior to the mediation, the
Frontline service informed the petitioner that the defendant would be served by the GBA
contacted about the problem. The petitioner (now the complainant) is not opposed to this
Article 60. The frontline service investigates whether the complaint or request is admissible.
A complaint is admissible when:
- it is drawn up in one of the national languages;
- contains a statement of the facts as well as the necessary indications for the identification of the processing to which it is processed
relates to;
- it falls within the competence of the Data Protection Authority.
A request is admissible when:
- it is drawn up in one of the national languages;
- it falls within the competence of the Data Protection Authority.
The first-line service can invite the complainant or the applicant to explain his complaint or request.
7
Article 62. § 1. The admissible complaints are submitted by the first-line service to the disputes chamber.
§ 2. The admissible requests are dealt with by the frontline service.
If an amicable agreement is reached between the parties through the intervention of the primary care service, the primary care service states
a report detailing the solution reached and its compliance with the legal principles of data protection
are set forth.
An amicable agreement does not exclude the supervisory powers of the Data Protection Authority.
If no amicable agreement is reached, the original request for mediation will take the form of a complaint
which is then submitted by the primary care service to the disputes chamber for the merits of the proceedings:
1 ° with the consent of the applicant; or
2 ° when the primary care service establishes serious indications of the existence of a practice that may give rise to
a violation of the basic principles of the protection of personal data, within the framework of this law and of the laws
containing provisions on the protection of the processing of personal data.
8
Article 22. § 1. The first-line service:
1 ° receives the complaints and requests that are sent to the Data Protection Authority;
2 ° can initiate a mediation procedure;
3 ° promotes data protection among the public, with specific attention being paid to minors;
4 ° promotes awareness among controllers and processors of their obligations;
5 ° provide the persons concerned with information about the exercise of their rights.
§ 2. The first-line service is headed by the director of the first-line service. Decision on the merits 71/2020 - 14/27
resistance. In addition, during the mediation procedure, the petitioner (complainant) confirmed that he
wanted mediation because he reported to the Primary Care Service on 18 February 2019 that the
defendant still went ahead with the publication on the website www.z. [..] and he expressly
the defendant asks to stop. The petitioner (complainant) adds that
a constructive dialogue with the defendant is apparently impossible.
33. By means of the correspondence communicated by the Primary Care Service to both parties concerned
this service has the intermediary role that Articles 22, § 1, 2 ° and 62, § 2, paragraph 2 of the WOG
foresee, try to fulfill by contacting the defendant and asking him to
the video in question - of which the petitioner (now the complainant) has the link to the
website - with the associated identification data to be removed. Since the
the defendant did not respond to the request made several times by the Primary Care Service, it could
service only establish that no amicable agreement could be reached. In such case, determines
Article 62, §2, paragraph 4 of the WOG that the original request for mediation takes the form of
a complaint that is subsequently submitted by the Primary Service to the Disputes Chamber
for treatment on the merits with the consent of the applicant, or in the case of
findings of serious evidence of a practice that may give rise to an infringement
on the basic principles of the protection of personal data. In that view, the
9
First-line service in its last letter to the defendant addressed a warning that in the absence
of any positive consequence to her request, possibly the proceedings before the Disputes Chamber
which has the possibility to sanction violations of the GDPR
with fines. The Primary Care Service is in application of Article 62, § 2, paragraph 4, 1 ° WOG
also addressed to the complainant and with his consent the request for mediation as
have the complaint handled by the Disputes Chamber. The Primary Service does not have
merely requested the consent of the applicant (being at the later stage of the procedure
“The complainant”) as required by law, but has informed him of the possibility to
to file a formal complaint if he so wishes. Based on Article 62, § 2, paragraph 4, 1 ° WOG
the Primary Care Service could have done with just asking for permission
to the petitioner to submit his file to the Disputes Chamber for handling
ground.
34. This communication to the petitioner (now the complainant) was made in application of Article 62, § 2,
paragraph 4, 1 ° WOG and can therefore in no way be regarded as advice on the part of the
First-line service or “proactive” request from this service to fill in the complaint form,
nor as assistance from this service to the complainant from which the defendant believes he can deduce
9
Letter from the Primary Care Service to the defendant dated 14 February 2019
Letter from the Primary Care Service to the complainant dated 27 February 2019 Decision on the merits 71/2020 - 15/27
that this is the appearance of partiality in the GBA's conduct. The
In a more general sense, the Disputes Chamber notes that neither the AVG nor the WOG oppose one
active role of the Primary Care Service in contacts with citizens and organizations. She just states
It is established that in the present case there has been no evidence of any intervention in the procedure.
Appointment of the Dispute Chamber
35. In the absence of an amicable agreement and because the petitioner completed the complaint form, he gave
pursuant to Article 62, § 2, paragraph 4, 1 ° WOG, permission to have the file processed by
the Disputes Chamber. The Disputes Chamber was thus arrested on the basis of Article 92, 1 ° WOG. 11
This assessment of the Disputes Chamber will result in the Disputes Chamber applying
12
Article 94 of the WOG has the option of invoking the intervention of the
Inspection service. The Disputes Chamber has full discretion to decide whether or not
not to appeal to the Inspection Service. In general, the Disputes Chamber uses the line
that the Inspectorate is involved if without investigative action (Article 58.1. GDPR
and Articles 64 through 90 WOG) the facts cannot be established sufficiently.
36. In the present file, the Disputes Chamber, immediately after the complaint has been lodged,
proceeded to deal with the complaint without interfering with the Inspection Service (Article 94, 3 °
WOG) and has decided that the file was ready for treatment on the merits (Article 95, §
1.1 ° WOG). Requesting an investigation to the Inspectorate was done by the Disputes Chamber
not considered necessary, because the facts could be established from the documents submitted
already belonged to the file. It is up to the Disputes Chamber to determine whether
an investigation by the Inspection Service is required in a specific file. "
Evidence
37. Contrary to what the defendant argues, there was indeed evidence on file
present of the publication of the visual material with the name and address of the complainant. Not
only the complainant mentioned the relevant YouTube link in his request dated 20 December 2018,
11
Article 92. The disputes chamber may be:
1 ° by the first-line service, in accordance with Article 62, § 1, for the handling of a complaint;
2 ° by a party concerned who, in accordance with Articles 71 and 90, appeals against measures of the
inspection service;
3 ° by the inspection service after it has concluded an investigation in accordance with Article 91 § 2.
12 Art. 94. Once established, the litigation chamber can:
1 ° request an investigation from the inspection service in accordance with Article 63, 2 °;
2 ° request the inspection service to conduct an additional investigation when the disputes chamber is established
in accordance with Article 92, 3 °;
3 ° handle the complaint without having contacted the inspection service of its own accord. Decision on the merits 71/2020 - 16/27
but the defendant has himself to the primary care service the processing of the data
complainant admitted on January 31, 2019, as follows:
“The data of the person concerned is mentioned in a published recording of air pollution
in the public domain, the publication is equivalent to a press article.
We have received a response from the person concerned, this response was published on the
website of the z ”
38. On February 18, 2019, the defendant itself reported three YouTube links concerning the
complainant, including the link the complainant mentioned in his initial request regarding
to the same link, as well as two other YouTube links, adding: “Already in 2017
we published his pollution on YouTube, […] ”,
39. These documents form an integral part of the file as submitted to the Disputes Chamber,
in view of the application of Article 62, § 2, paragraph 4 of the WOG as set out above, whereby the
First-line service then, in application of Article 62, §1 WOG, forwards the complaint to the
Disputes chamber thus defined on the basis of Article 92, 1 ° WOG.
40. During the proceedings before the Disputes Chamber, the defendant reports three video
recordings of the smoke emission caused by the defendant and declares that in this video
recordings, on which as such no private or family activity of the complainant was visible,
the personal data of the complainant was indeed published. The facts
are thus sufficiently established.
41. On the other hand, as regards the complainant's allegation that the defendant would spread defamation
via a fake account on Facebook, the Dispute Chamber follows the defendant, given this allegation
of the complainant is not supported by any evidence provided by the complainant.
Role of the Inspection Service
42. To support the statement that the DPA would not respect the requirement of impartiality,
the defendant also refers to an e-mail dated 21 February 2019 between a staff member
of the Primary Care Service and a staff member of the Inspection Service. The Disputes Chamber states
noted that this internal e-mail only contained the preparation of the letter sent by the Primary Care Service
addressed to the complainant on February 27, 2019. Both the e-mail and the letter only confirm this
the Disputes Chamber has the power to take sanctioning action in case of determination
of an infringement. The defendant falsely asserts that it could be from this passage
inferred that no infringement was found on February 21, 2019. The email and Decision on the merits 71/2020 - 17/27
subsequent letter to the complainant clarifies the competence of the Primary Care Service
as laid down in Article 22, § 1 WOG.
43. With regard to the defendant's assertion that from the mail traffic between the Primary Service
and the Inspectorate reveals that staff apparently want to avoid the file
is forwarded to the Inspection Service, the Disputes Chamber notes that the
First-line service is responsible for receiving every complaint and request and then the nature
of these complaints and requests and therefore also determines the further handling thereof. The
First-line service has a margin of discretion that can be partly determined by
various considerations, such as the seriousness of the complaint or request. To the smooth operation
of the Disputes Chamber and the Inspection Service fits within the remit of the
First-line service to ensure that the other services are not overloaded by files
that can be handled at the level of the Primary Service itself. The Dispute Chamber
establishes that the communication between the Primary and Inspection Service is part of the
a specific assignment of the Primary Care Service, where possible, in this case the
Inspection service, not to be entrusted with a file.
44. Of course, once the Complaint has been heard, the Disputes Chamber is not bound by such consultation
between the Primary Care Service and the Inspection Service, and the Disputes Chamber will act where necessary
in order to arrive at a sound decision-making, to appeal to the intervention of the
Inspection service. The Disputes Chamber explicitly points out that a case with the
Inspection service can be appointed by the Disputes Chamber (in accordance with art 94, 2e
e
in conjunction with art 63, 2 of the WOG), but not by the Primary Care Service. However, nothing opposes
informal contact between the Inspection Service and the Primary Care Service with a view to effective
execution of the various tasks.
Independence of the Dispute Chamber
45. The Disputes Chamber further emphasizes - unnecessarily - that at no time one
employee of the Disputes Chamber intervened in the phase prior to the
13
Explanatory Memorandum to the bill establishing the Data Protection Authority (DOC 54 2648/001, p.
40): “The first-line service is responsible for receiving every complaint and request and then determines the nature of this
complaints and requests and therefore the further handling thereof. The first-line service has a
margin of appreciation that can be partly determined by various considerations, such as the priorities set by the
management committee or the seriousness of the complaint or request. To ensure the proper functioning of the litigation chamber and the inspection service
For example, care must be taken to ensure that they are not overloaded by files at the level of the
first-line service itself can be handled. ” Decision on the merits 71/2020 - 18/27
submitting the complaint to the Disputes Chamber. This is evidenced by the fact that as soon as the
Dispute chamber was overcome by the complaint, all communication with the parties took place through the
Registry of the Disputes Chamber and the e-mail address litigationchamber @ apd-
gba.be. None of the personnel of the GBA named by the complainant in the
complaint form, nor any other staff member of the Primary Care Service or of the Inspection Service
works for the Disputes Chamber. In addition, there is a strict division of staff
within the GBA, whereby each of the staff members is exclusively assigned to a single service within the
GBA has been allocated.
46. However, the allocation to one particular service does not preclude the possibility in principle that
staff members also perform work for another service. Of course
they should be prevented from acting in different capacities for discerning
services in the same file. The WOG does not stipulate that there must be a strict dividing line
between the employees of the distinguished services whereby the employees of the GBA
would be prevented from changing service, making it sequentially for the one service
and then act for another service.
47. For the rest, the Disputes Chamber is completely free to determine how it makes decisions
prepares, who is involved and which employees are preparing a decision.
In addition, the Disputes Chamber points out that the decisions are taken by the members of
the Disputes Chamber, as composed on the basis of article 33 WOG. The autonomy to
Sanctioning action is also ensured by the participation of external members in the
decision-making of the Disputes Chamber, without prejudice to the authority of the chairman of the
Dispute chamber to sit alone.
Criminal investigation regarding the same facts
48. Although the defendant does not elaborate on the fact that
complaint was lodged against the defendant by the complainant with regard to the same facts
the Public Prosecution Service in [..], but did so for the Marktenhof in application of the
principle le criminel tien le civil en état posed the question whether there could (still) be cause for this
the GBA to prosecute a punishment of the citizen when there is already (apparently) about
the same facts a criminal investigation is underway, the Disputes Chamber explained on this point
procedure. Decision on the merits 71/2020 - 19/27
49. The Marktenhof refers to Articles 95, § 1, 7 ° WOG and 100, § 2 WOG, in which application
is made of the principle le criminel tien le civil en état because these articles stipulate
that when, after transfer of the file by the Dispute Chamber to the public prosecutor of the
public prosecutor in Brussels, the Public Prosecution Service refrains from prosecuting
, an amicable settlement or mediation in criminal matters referred to in Article 216ter of
propose the Code of Criminal Procedure, or if the Public Prosecution Service does not
has taken a decision within a period of six months from the day of
receipt of the file, the Data Protection Authority decides whether the administrative
procedure must be retaken.
50. In the present file, the Disputes Chamber has the file that was brought before it
however not personally submitted to the public prosecutor's office. The information that a complaint about the same facts
was filed with the Public Prosecution Service was notified by the defendant to the
Litigation chamber. In order to be able to determine which options the Disputes Chamber still has
in order to be able to take corrective action, if necessary, it addressed itself to the Public Prosecution Service
of the Public Prosecutor in [..] to find out what action was taken on the file.
Following this, the Public Prosecution Service stated that the acts are not punishable because they are not a crime
and for that reason it was decided to close the file without further action. Accordingly
the Disputes Chamber can resume the administrative procedure.
Right of defense
51. Next, the defendant rightly points out that in determining the new claim periods
following the judgment of the Marktenhof, he was not given a final term in order to
allow him to respond to the complainant's reply, but this was
immediately rectified by the Dispute Chamber as soon as this was noticed. Precisely because of it
it has the importance that the Disputes Chamber attaches to respect for the right of defense
moreover decides ex officio to hear the parties involved.
52. The Disputes Chamber emphasizes that impartial and fair treatment of the entire
trajectory must be assured. The problem raised by the defendant is pertinent
on the previous stage, but the rights of defense have not been violated, because the
defendant was given the opportunity to present his argument fully by
in his statement of defense, as well as in his reply and in addition, he is entitled to
be able to fully object to the hearing of the Disputes Chamber.
b) Personal data Decision on the substance 71/2020 - 20/27
53. First, the Disputes Chamber considers it necessary to clarify from which the processing of
personal data exists in this file. In the conclusion drawn up by the defendant in
under the procedure before the Marktenhof, he asserts that the GBA order the removal
of “a video recording” without providing any useful evidence proving the
publication of personal data would appear. The defendant here refers to the writing
dated 31 January 2019 that he received for this purpose from the Primary Care Service. At that time there was
no formal complaint yet, so the GBA filed the request at that time
answered on the basis of Article 62, § 2 WOG which provides that admissible requests
handled by the Primary Care Service.
54. In the relevant letter, the Primary Care Service explicitly stated the following:
“In principle, a photo / video of a fireplace does not fall under privacy legislation. In your case
however, also add a name and address to the video, so that there is a
processing of personal data within the meaning of the GDPR.
This states that processing is only possible in “a few limiting cases” (article
6, 1 of the GDPR).
In your case this only seems to be possible with permission. ”
55. In the judgment of 12 June 2019, the Marktenhof believes that it can state that the GBA by means of
as of this writing would have stated that the publication of a film clip (mentioning the
name and address of the person who is in breach of the legislation regarding emissions)
in itself does not constitute a violation of privacy legislation, but that “such a publication […]
only [seems] to be possible with permission ”.
56. The Disputes Chamber wishes to clarify any possible confusion in this regard. The concerning
writing mentions that the publication of a photo / video of a chimney as such does not
involves processing of personal data to which privacy legislation would apply
but that, on the other hand, there is indeed a processing of personal data
as soon as the video is published together with the name and address of the person concerned and
that such publication can only be made with permission in the present case.
57. This letter must be seen in the light of the definition of the concept of personal data
Article 4, 1) of the GDPR, as explained in Recital 26 of the GDPR, Opinion 4/2007 of the Decision on the merits 71/2020 - 21/27
Working Party of the Working Party on Data Protection 14 and the case law of the Court of Justice of the
EU. 15 The Disputes Chamber clarifies that although the concept of personal data should be broad
understood and this includes any data on the basis of which a natural person
identifiable, a video recording of only one chimney showing the emission of
smoke can be seen without allowing the identification of a person in any way,
is not personal data. That video recording of the chimney, on the other hand, will be one
personal data as soon as identification data of the natural person is included
mention.
58. In his statement of defense and reply to the Disputes Chamber, the defendant states that on the
published video recordings do not contain any private and family activities of the complainant, nor of the
local residents is visible, so that there would be no personal data. The
According to the defendant, publication of personal data for wood smoke emission sources is possible
do enable local residents to find out where the wood smoke nuisance comes from, and
if necessary, to take a civil party.
59. The Disputes Chamber establishes that the publication in its entirety, being the video together with the
name and address of the complainant, constitutes a processing of personal data in the sense of
Article 4, 1) GDPR, whereby the principles of data protection must apply to each
16
data concerning an identified or identifiable natural person. The publication
of the video recording is indistinguishable from the name and address of the complainant. The
video recording as well as the name and address of the complainant are published exactly with it
purpose to be able to proceed with identification. The defendant explicitly acknowledges this because
he himself indicates that he wants to offer third parties the opportunity to find out who the
caused by wood smoke nuisance and subsequently become a civil party against that person
can argue.
14 Opinion of the Data Protection Working Party on Article 294/2007 on the concept of personal data, adopted 20 June
2007: https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2007/wp136_en.pdf
15 Including Nowak (CJEU 20 December 2017, C ‑ 434/16, ECLI: EU: C: 2017: 994) and Breyer (CJEU 19 October
2016, C-582/14, ECLI: EU: C: 2016: 779)
16
Recital 26 of the GDPR: The principles of data protection should apply to any data concerning a
identified or identifiable natural person. Pseudonymised personal data generated by use
of additional data can be linked to a natural person, must be data about a
identifiable natural person. To determine whether a natural person is identifiable, it is necessary
all means that can reasonably be expected to be used by the
controller or by another person to directly or indirectly identify the natural person,
for example selection techniques. To determine whether resources can reasonably be expected to be used
in order to identify the natural person, all objective factors, such as the cost of, must be taken into account
and the time required for identification, taking into account the available technology at the time of processing and the
technological developments. Data protection principles should therefore not apply to anonymous
data, namely data that does not relate to an identified or identifiable natural person or to
personal data that has been made anonymous in such a way that the data subject is not or no longer identifiable. This regulation
therefore does not cover the processing of such anonymous data, including for statistical or
research purposes. Decision on the merits 71/2020 - 22/27
c) Lawfulness of the processing
60. Processing of personal data is only lawful if there is a legal ground to do so
exists. To ensure the legality of the publication of the video along with the name and address
of the complainant, the defendant invokes Article 6.1. d) GDPR (the processing is
necessary to protect the vital interests of the data subject or of another natural person
protect) and Article 6.1. e) GDPR (the processing is necessary for the performance of a task
in the public interest or of a task in the exercise of official authority
assigned to the controller).
61. The Disputes Chamber is examining the extent to which these legal grounds can be invoked by
the defendant in order to process the personal data relating to the
justify the complainant.
62. With regard to the legal basis that permits the processing of personal data if
the processing is necessary for the vital interests of the data subject or of another
natural person (Article 6.1. d) GDPR), the Disputes Chamber points out that the
protection of an interest for the life of the data subject or that of another person
natural person is essential, should come first. In the present case, the defendant argues
does not indicate that the publication of the information concerning the complainant would be relevant to the
the complainant's own life, but are important for the protection of third parties,
more specifically the local residents. After all, the defendant maintains that it is his intention to
to protect an interest essential to the lives of other natural persons,
namely the protection of the health of the local residents to which the seriousness of the nuisance
caused by wood smoke emission on the basis of the publication of a film with
according to the name and address of the complainant. Determines in this regard
Recital 46 GDPR that the processing of personal data on the basis of vital interest for
another natural person is in principle only permitted if the processing is apparent
17
cannot be based on any other legal basis.
63. Consequently, the Disputes Chamber will examine whether there can be a different legal basis if necessary
invoked which would allow the defendant to proceed with the publication of the video including
of the name and address of the complainant.
17 See further [Kuner book, p333-334. Decision on the merits 71/2020 - 23/27
64. The Disputes Chamber finds that the defendant also relies on article 6.1. e)
AVG. According to the defendant, publication is necessary for the performance of a task of
public interest or of a task in the exercise of official authority
the controller is instructed. Specific as to the legal basis
stated in Article 6.1. e) AVG, the Disputes Chamber notes that Article 6.3. AVG 18 specifies that
this legal basis should be determined by Union or Member State law applicable to the
controller applies. The purpose of the processing serves in that
legal basis to be established or is with regard to the in Article 6.1. e) GDPR
processing necessary for the performance of a task carried out in the public interest or for the
exercise of official authority vested in the controller.
65. The defendant does not mention any legal basis that would be in national law
recorded, which would allow him to proceed with the data processing relating to the object
is part of the complaint. Insofar as the defendant refers to Article 8 ECHR to
justify that he was allowed to proceed with the publication in question, makes the Disputes Chamber
also note that this article also only interferes in the exercise of the right to
respect for private life where provided for by law. At this point too, the
defendant to invoke any legal provision thereby fulfilling this requirement of Article
8 ECHR would have been complied with and which would entitle him to the whole of
publish personal data of the complainant.
66. Since the defendant's arguments do not show that he is acting on any legal basis
established by Union or Member State law from which he could draw the right to
to proceed with the publication of the video images with
name and address of the complainant, the Disputes Chamber is of the opinion that the defendant cannot comply
invoke article 6.1. e) GDPR to declare the publication in question lawful.
183 The legal basis for the processing referred to in points (c) and (e) of paragraph 1 shall be established at:
a) Union law; or
(b) Member State law applicable to the controller.
The purpose of the processing is established in that legal basis or is related to the processing referred to in point (e) of paragraph 1
necessary for the performance of a task carried out in the public interest or for the exercise of official authority assigned to the
controller has been granted. That legal basis may contain specific provisions for the application of the rules
of this Regulation, including the general conditions on the lawfulness of processing
by the controller; the types of data processed; The involved; the entities to which and the purposes
for which the personal data may be provided; the purpose limitation; the storage periods; and the processing activities and
procedures, including measures to ensure lawful and fair processing, such as those for others
specific processing situations as referred to in Chapter IX. Union or Member State law must comply with a
objective of general interest and must be proportionate to the legitimate aim pursued. Decision on the merits 71/2020 - 24/27
67. Although the defendant makes no mention of any legitimate interest (Article 6.1. F) GDPR),
For the sake of completeness, the Disputes Chamber is investigating whether the data processing could be possible
based.
68. In accordance with Article 6.1 f) GDPR and the case law of the Court of Justice of the European
Union (hereinafter “the Court”) three cumulative conditions must be fulfilled for a
controller can validly invoke this ground of lawfulness, “te
know, in the first place, the promotion of a legitimate interest of the
controller or of the third party (ies) to whom the data are provided, in the
second, the necessity of the processing of personal data for the purpose of
the legitimate interest, and, thirdly, the condition that the fundamental rights
and freedoms of the person concerned with data protection do not prevail ”(judgment
“Rigas”).
In order to be able to rely on the lawfulness ground of the
"Legitimate interest", in other words, must be indicated by the controller
show that:
1) the interests pursued by this processing can be recognized as justified
(the “target key”);
2) the intended processing is necessary for the realization of these interests (the
“Necessity test”); and
3) the balancing of these interests against the interests, fundamental freedoms and
fundamental rights of data subjects weighs in favor of the
controller (the “balancing test”).
69. With regard to the first condition (the so-called “target test”), the Disputes Chamber of
consider that the purpose consisting in the seriousness of the nuisance caused by
wood smoke emission and its impact on the health of local residents
are considered as performed for a legitimate interest. The importance that the
the defendant as controller can be pursued in accordance with Recital 47 GDPR
are considered justified in themselves. The first is therefore satisfied
condition contained in Article 6.1, f) GDPR.
70. In order to meet the second condition, it must be demonstrated that the processing
necessary for the achievement of the objectives pursued. This means more
stipulates that the question should be asked whether the same result can be achieved by other means
19 CJEU, 4 May 2017, C-13/16, Valsts policijas Rīgas reģiona pārvaldes Kārtības policijas pārvalde v Rīgas pašvaldības SIA
'Rīgas satiksme', recital 28. See also CJEU, 11 December 2019, C-708/18, TK t / Asociaţia de Proprietari bloc M5A-ScaraA,
recital 40. Decision on the substance 71/2020 - 25/27
are achieved without processing of personal data or without unnecessarily invasive
processing for the data subjects.
71. Based on the purpose, being to demonstrate the negative impact of wood smoke emission
on the health of local residents, offering them the opportunity to
finding out where the wood smoke nuisance comes from, it must thus be ascertained whether the
publication of visual material showing smoke from a chimney with the corresponding name
and the address of the person responsible for the smoke emission, whether or not to contribute
to protect civilians against wood smoke infiltration. The information that the defendant collects
and shares through the z [..] to draw attention to the harmful effects of wood smoke emissions
without proceeding to the processing of personal data is completely in line
within the pursued purpose.
72. However, the publication of visual material linked to the name and address of the
complainant, only results in the person concerned being labeled as an air polluter digitally
without any means of defense. This method does not offer any added value
combating wood smoke emissions and protecting citizens against them. To the extent it
it is the defendant's aim to use this practice to deprive local residents
provide an opportunity to find out where the wood smoke is coming from and then travel
civil party, the Disputes Chamber is of the opinion that even without publication of the
images with identifying data of the complainant this purpose can be achieved by just the
state the region where the smoke emission is located, so that a citizen living in that region is located
possibly civil party against strangers. The second condition is thus
not met because the principle of data minimization (Article 5.1. c) GDPR) is not
was complied with.
73. In order to verify whether the third condition of Article 6.1, f) GDPR - the so-called
“Balancing test” between the interests of the controller, on the one hand, and the
fundamental freedoms and fundamental rights of the person concerned, on the other hand - can be fulfilled, should
reasonable, in accordance with Recital 47 GDPR
expectations of the data subject. More specifically, it should be evaluated whether “data subject
at the time and in the context of the collection of the personal data is reasonably permitted
expect processing to take place for that purpose ”. 20
74. This is also emphasized by the Court in its judgment “TK t / Asociaţia de Proprietari bloc M5A-
21
ScaraA ”of December 11, 2019, in which it states:
20
Recital 47 GDPR.
21 CJEU, 11 December 2019, C-708/18, TK t / Asociaţia de Proprietari bloc M5A-ScaraA, consideration 58. Decision on the merits 71/2020 - 26/27
“The reasonable expectations of the data subject are also relevant to this assessment
whether her personal data will not be processed when, in the data
circumstances of the case, the data subject cannot reasonably further process the
data can expect ”.
75. With regard to this third condition, the Disputes Chamber can only establish that the complainant is on
could not expect a single moment of the publication of the images with his name and
address.
76. The defendant has also not asked for the consent of the complainant (Article 6.1. A) GDPR)
to be allowed to publish the images concerned with his name and address. The defendant has
is limited to informing the complainant only about the publication already made, including his
request to the complainant to do something about the wood smoke infiltration that would be caused by him
causes. Although consent within the meaning of Article 4, 11) GDPR, the only possible
is the legal basis on which the defendant could have relied in order to proceed with the
regarding publication, the defendant did not request such consent from the complainant.
77. The other legal grounds included in Article 6.1. b) and c) are not in the present case
applicable.
78. The Disputes Chamber is of the opinion that all of the elements set out demonstrate that
the defendant cannot rely on any legal basis proving its legality
of the data processing as set up by him. The Disputes Chamber thus concludes
that the violation of Article 6.1. AVG has been proven. Taking into account that the
video footage stating the name and address of the complainant has been removed by the
defendant on the website www.z. [..] as well as that the infringement was only for the first time
committed, the Disputes Chamber is of the opinion that it is appropriate to give the defendant a
reprimand. The Disputes Chamber also takes this into account when determining this sanction
that the complaint is part of a wider conflict between the parties, being a neighborly dispute,
about which the Disputes Chamber notes that it is not the task of the
Data protection authority should intervene as far as the aspects are concerned
that do not relate to the processing of personal data. The Disputes Chamber decides
Therefore, in the concrete factual circumstances of this case, a reprimand is sufficient.
d) Compensation
79. At the defendant's request to award him damages, the
Do not enter the disputes chamber because it does not have that power. Decision on the merits 71/2020 - 27/27
e) Publication of the decision
80. Considering the importance of transparency with regard to the decision-making of the
Disputes Chamber, this decision will be published on the GBA website. However, it is
does not need to be directly identifying the parties
announced.
FOR THESE REASONS,
the Disputes Chamber of the Data Protection Authority will, after consultation, decide with regard to this
of the defendant:
- on the basis of Article 100, §1, 2 ° WOG, to dismiss the complaint for the part of the complaint that
relates to a fake Facebook account.
- formulate a reprimand on the basis of Article 100, §1, 5 ° WOG with regard to the infringement of
article 6.1. AVG
On the basis of article 108, §1 WOG, an appeal can be lodged against this decision within
a period of thirty days from the notification at the Marktenhof, with the
Data protection authority as defendant.
Hielke Hijmans
Chairman of the Disputes Chamber
