AEPD (Spain) - PS/00420/2021
From GDPRhub
| AEPD - PS/00420/2021 | |
|---|---|
 | |
| Authority: | AEPD (Spain) |
| Jurisdiction: | Spain |
| Relevant Law: | Article 5(1)(f) GDPR Article 32 GDPR |
| Type: | Other |
| Outcome: | n/a |
| Started: | 18.04.2022 |
| Decided: | |
| Published: | 16.06.2022 |
| Fine: | 48,000 EUR |
| Parties: | Banco Bilbao Vizcaya Argentaria SA (BBVA) |
| National Case Number/Name: | PS/00420/2021 |
| European Case Law Identifier: | n/a |
| Appeal: | n/a |
| Original Language(s): | Spanish |
| Original Source: | AEPD (in ES) |
| Initial Contributor: | taisfblauth |
The Spanish DPA fined a bank €48,000 for failing to implement adequate technical and organizational measures to prevent a personal data breach: The bank had mistakenly disclosed a landlord's account balance to a tenant depositing rent.
English Summary
Facts
The data subject, a landlord, had a bank account with the controller, Banco Bilbao Vizcaya Argentaria SA. A tenant made a rent payment to the data subject's account and asked the controller for a receipt. In response, the controller provided the tenant with a document containing the data subject's account balance.
Holding
The case was categorized as a personal data security breach. The DPA held that the controller violated the integrity and confidentiality of personal data when it shared with a third party a document containing the data subject’s account balance. The DPA imposed a sanction of €50,000 for the infringement of Article 5(1)(f) GDPR.
The DPA also held that when the breach occurred, technical and organizational measures were not in place to prevent the data subject’s account balance from being seen by whoever requested proof of payment. A sanction of €30,000 euros was imposed for the infringement of Article 32 GDPR.
The total fine was reduced to €48,000 because the controller acknowledged responsibility for the breach and agreed to pay before final resolution of the sanctioning procedure.
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English Machine Translation of the Decision
The decision below is a machine translation of the Spanish original. Please refer to the Spanish original for more details.
1/11
File No.: PS/00420/2021
RESOLUTION OF TERMINATION OF THE PROCEDURE FOR PAYMENT
VOLUNTEER
Of the procedure instructed by the Spanish Agency for Data Protection and based on
to the following
BACKGROUND
FIRST: On April 18, 2022, the Director of the Spanish Agency for
Data Protection agreed to initiate sanctioning proceedings against BANCO BILBAO
VIZCAYA ARGENTARIA, S.A. (hereinafter, the claimed party), through the Agreement
which is transcribed:
<<
File No.: PS/00420/2021
AGREEMENT TO START A SANCTION PROCEDURE
Of the actions carried out by the Spanish Data Protection Agency and in
based on the following
FACTS
FIRST: A.A.A. (hereinafter, the complaining party) dated May 1, 2021
filed a claim with the Spanish Data Protection Agency. The
claim is directed against BANCO BILBAO VIZCAYA ARGENTARIA, S.A. with CIF
A48265169 (hereinafter, the BBVA). The grounds on which the claim is based are
following:
On January 7, 2021, a person unknown to her, made at an ATM
from the entity claimed an income from the rental of an apartment that the party
claimant has rented. As the cashier did not provide any supporting document of the
income, said third party addressed a person from the office who gave him a
document stating the balance of the account of the claimant. As a result of
occurred, contact the office and apologize for the mistake. File claim
in writing before the entity, on January 18, 2021 and receives a response, on the date
February 10, 2021, indicating that, after initiating the pertinent inquiries to
clarify the facts, adopted the appropriate measures, and that they know that the
Those responsible for the affected office apologized for what had happened.
Together with the notification, it provides a document justifying the payment made, where
The balance of the account is recorded, with the stamp of the office dated January 7, 2021,
written claim and response from the claimed entity.
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 2/11
SECOND: In accordance with article 65.4 of Organic Law 3/2018, of 5
December, of Protection of Personal Data and guarantee of digital rights (in
hereinafter LOPDGDD), said claim was transferred to BBVA so that it
proceed to its analysis and inform this Agency within a month of the
actions carried out to adapt to the requirements set forth in the regulations of
Data Protection.
The transfer, which was carried out in accordance with the regulations established in Law 39/2015, of
October 1, of the Common Administrative Procedure of the Administrations
Public (hereinafter, LPACAP), was collected on 06/02/2021 as recorded in the
acknowledgment of receipt that works in the file.
On 07/13/2021, this Agency received a written response indicating:
“On January 7, a person went to the BBVA branch ***OFICINA.1 to
make a cash deposit in the account of Mrs. A.A.A. in concept <<rental
January XXXXXXXXX>>. Since the ATM could not issue proof of
the operation in paper format, said person went to the cash desk and the employee
of BBVA I gave him, by mistake, a document justifying the payment where, in addition,
The balance in Mrs. A.A.A.'s account appeared.
It is true that the cashier at the BBVA branch ***OFFICE.1 committed a
punctual and human error by not deleting the amount of the balance of the account of Mrs.
A.A.A. BBVA regrets the error and informs this Agency that at the same time
that Mrs. A.A.A. contacted the office to ask for explanations for what
happened, he apologized for it, being unable to do more than reiterate his
apologize in writing 8/6/2021”
With the answer, BBVA provides a document, addressed to the complaining party, in which
state that they regret the mistake, apologize, and inform him that they have taken
measures so that it does not happen again.
THIRD: On August 1, 2021, in accordance with article 65 of the
LOPDGDD, the claim filed by the claimant was admitted for processing.
FOUNDATIONS OF LAW
Yo
Competition
By virtue of the powers that article 58.2 of Regulation (EU) 2016/679 of the
European Parliament and of the Council of April 27, 2016 on the protection of
individuals with regard to the processing of personal data and the free
circulation of these data (RGPD) recognizes each control authority, and according to what
established in articles 47 and 48 of the LOPDGDD, the Director of the Agency
Spanish Data Protection is competent to initiate and resolve this
process.
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 3/11
II
Previous issues
Article 4 paragraph 12 of the RGPD defines, in a broad way, the "violations of
security of personal data” (hereinafter security breach) as “all
those breaches of security that cause the destruction, loss or alteration
accidental or illicit of personal data transmitted, conserved or processed in another
form, or unauthorized communication or access to said data.”
In the present case, there is a security breach of personal data in the
circumstances indicated above, categorized as a breach of confidentiality, when
have been provided to a third person, unrelated to the claimant, the balance of their
Bank account.
It should be noted that the identification of a security breach does not imply the
imposition of a sanction directly by this Agency, since it is necessary
analyze the diligence of those responsible and in charge and the security measures
applied.
Within the principles of treatment provided for in article 5 of the RGPD, the
integrity and confidentiality of personal data is guaranteed in section 1.f)
of article 5 of the RGPD. For its part, the security of personal data comes
regulated in articles 32, 33 and 34 of the RGPD, which regulate the security of the
treatment, notification of a violation of the security of personal data to
the control authority, as well as the communication to the interested party, respectively.
III
Article 5.1.f) of the RGPD
Article 5.1.f) “Principles related to treatment” of the RGPD establishes:
"1. The personal data will be:
(…)
f) treated in such a way as to ensure adequate security of the
personal data, including protection against unauthorized processing or
against its loss, destruction or accidental damage, through the application
of appropriate technical or organizational measures ("integrity and
confidentiality”).”
In the present case, it is stated that the personal data of the complaining party,
in the BBVA database, were unduly exposed to a third party, since by
provide you with the required document, proof of the deposit made into the account, you will be
also provided the balance of the account, of which the claimant was the holder, data
that should have been deleted or anonymised.
In accordance with the evidence available in this agreement of
initiation of the sanctioning procedure, and without prejudice to what results from the
instruction, it is considered that the known facts could constitute a
infringement, attributable to BBVA, for violation of article 5.1.f) of the RGPD.
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 4/11
IV
Classification of the infringement of article 5.1.f) of the RGPD
If confirmed, the aforementioned infringement of article 5.1.f) of the RGPD could lead to the
commission of the offenses typified in article 83.5 of the RGPD that under the
The heading "General conditions for the imposition of administrative fines" provides:
“The infractions of the following dispositions will be sanctioned, in accordance with the
paragraph 2, with administrative fines of a maximum of EUR 20,000,000 or,
in the case of a company, an amount equivalent to a maximum of 4% of the
global total annual turnover of the previous financial year, opting for
the largest amount:
a) the basic principles for the treatment, including the conditions for the
consent under articles 5, 6, 7 and 9; (…)”
In this regard, the LOPDGDD, in its article 71 "Infringements" establishes that
“The acts and behaviors referred to in sections 4,
5 and 6 of article 83 of Regulation (EU) 2016/679, as well as those that result
contrary to this organic law.
For the purposes of the limitation period, article 72 “Infringements considered very
serious” of the LOPDGDD indicates:
"1. Based on the provisions of article 83.5 of Regulation (EU) 2016/679,
considered very serious and will prescribe after three years the infractions that suppose
a substantial violation of the articles mentioned therein and, in particular, the
following:
a) The processing of personal data violating the principles and guarantees
established in article 5 of Regulation (EU) 2016/679. (…)”
v
Sanction for the infringement of article 5.1.f) of the RGPD
For the purposes of deciding on the imposition of an administrative fine and its amount,
accordance with the evidence available at the present time.
agreement to initiate sanctioning proceedings, and without prejudice to what results from the
investigation, the infringement in question is considered to be serious for the purposes of
RGPD and that it is appropriate to graduate the sanction to be imposed in accordance with the following
criteria established by article 83.2 of the RGPD:
As aggravating factors:
-The degree of responsibility of the person in charge or of the person in charge of the treatment,
taking into account the technical or organizational measures that they have applied in
under articles 25 and 32. Art. 83.2.d).
BBVA, as data controller, has to implement measures
adequate to avoid the exposure of personal data to third parties not
authorized. Given that in the present case there has been a gap of
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 5/11
confidentiality, it can be assumed that no measures had been taken
appropriate.
Likewise, it is considered appropriate to graduate the sanction to be imposed in accordance with the
following criteria established in section 2 of article 76 “Sanctions and measures
corrective measures” of the LOPDGDD:
As aggravating factors:
-The link between the activity of the offender and the performance of
personal data processing. (Art. 76.2.b).
The activity of BBVA, a financial institution, and the high number of customers
with which it has, entails the handling of a large number of data
personal. This implies that they have sufficient experience and should have
with the adequate knowledge for the treatment of said data.
The balance of the circumstances contemplated in article 83.2 of the RGPD and the
Article 76.2 of the LOPDGDD, with respect to the infraction committed by violating the
established in article 5.1.f) of the RGPD, allows initially setting a penalty of
€50,000 (fifty thousand euros).
SAW
Article 32 of the GDPR
Article 32 “Security of treatment” of the RGPD establishes:
"1. Taking into account the state of the art, the application costs, and the
nature, scope, context and purposes of the treatment, as well as risks of
variable probability and severity for the rights and freedoms of individuals
physical, the person in charge and the person in charge of the treatment will apply technical measures and
appropriate organizational measures to guarantee a level of security appropriate to the risk,
which in your case includes, among others:
a)pseudonymization and encryption of personal data;
b) the ability to guarantee the confidentiality, integrity, availability and
permanent resilience of treatment systems and services;
c) the ability to restore the availability and access to personal data
quickly in the event of a physical or technical incident;
d) a process of regular verification, evaluation and evaluation of the effectiveness
technical and organizational measures to guarantee the security of the
treatment.
2. When evaluating the adequacy of the security level, particular account shall be taken of
takes into account the risks presented by the processing of data, in particular as
consequence of the accidental or unlawful destruction, loss or alteration of data
data transmitted, stored or otherwise processed, or the communication or
unauthorized access to said data.
3. Adherence to an approved code of conduct under article 40 or to a
certification mechanism approved under article 42 may serve as an element
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 6/11
to demonstrate compliance with the requirements established in section 1 of the
present article.
4. The person in charge and the person in charge of the treatment will take measures to guarantee that
any person acting under the authority of the person in charge or the person in charge and
has access to personal data can only process said data following
instructions of the person in charge, unless it is obliged to do so by virtue of the Right of
the Union or the Member States.
In the present case, at the time the breach occurred, BBVA did not have
adequate technical and organizational measures to prevent the balance of the account
of the complaining party was visible to the person who requested proof of the
income made in said account, data that in no case should have been provided.
In accordance with the evidence available in this agreement of
initiation of the sanctioning procedure, and without prejudice to what results from the
instruction, it is considered that the known facts could constitute a
infringement, attributable to BBVA, for violation of article 32 of the RGPD.
7th
Classification of the infringement of article 32 of the RGPD
If confirmed, the aforementioned violation of article 32 of the RGPD could lead to the
commission of the offenses typified in article 83.4 of the RGPD that under the
The heading "General conditions for the imposition of administrative fines" provides:
“The infractions of the following dispositions will be sanctioned, in accordance with the
paragraph 2, with administrative fines of a maximum of EUR 10,000,000 or,
in the case of a company, an amount equivalent to a maximum of 2% of the
global total annual turnover of the previous financial year, opting for
the largest amount:
a) the obligations of the person in charge and the person in charge pursuant to articles 8,
11, 25 to 39, 42 and 43; (…)”
In this regard, the LOPDGDD, in its article 71 "Infringements" establishes that
“The acts and behaviors referred to in sections 4,
5 and 6 of article 83 of Regulation (EU) 2016/679, as well as those that result
contrary to this organic law.
For the purposes of the limitation period, article 73 “Infringements considered serious”
of the LOPDGDD indicates:
“Based on the provisions of article 83.4 of Regulation (EU) 2016/679,
considered serious and will prescribe after two years the infractions that suppose a
substantial violation of the articles mentioned therein and, in particular, the
following:
(…)
f) The lack of adoption of those technical and organizational measures that
are appropriate to guarantee an adequate level of security when
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 7/11
risk of treatment, in the terms required by article 32.1 of the
Regulation (EU) 2016/679.
(…)
viii
Sanction for the infringement of article 32 of the RGPD
For the purposes of deciding on the imposition of an administrative fine and its amount,
accordance with the evidence available at the present time.
agreement to initiate sanctioning proceedings, and without prejudice to what results from the
investigation, the infringement in question is considered to be serious for the purposes of
RGPD and that it is appropriate to graduate the sanction to be imposed in accordance with the criteria that
establishes article 83.2 of the RGPD:
Likewise, it is considered appropriate to graduate the sanction to be imposed in accordance with the
following criteria established in section 2 of article 76 “Sanctions and measures
corrective measures” of the LOPDGDD:
As aggravating factors:
-The link between the activity of the offender and the performance of
personal data processing. (Art. 76.2.b).
The activity of BBVA, a financial institution, and the high number of customers
with which it has, entails the handling of a large number of data
personal. This implies that they have sufficient experience and should have
with the adequate knowledge for the treatment of said data.
The balance of the circumstances contemplated in article 83.2 of the RGPD and the
Article 76.2 of the LOPDGDD, with respect to the infraction committed by violating the
established in article 32 of the RGPD, allows initially setting a penalty of
€30,000 (thirty thousand euros).
IX
Imposition of measures
Among the corrective powers provided in article 58 "Powers" of the RGPD, in the
Section 2.d) establishes that each control authority may “order the
responsible or in charge of the treatment that the treatment operations are
comply with the provisions of this Regulation, where appropriate, in a
certain manner and within a specified period…”.
The Spanish Agency for Data Protection in the resolution that puts an end to the
This procedure may order the adoption of measures, as established
in article 58.2.d) of the RGPD and in accordance with what is derived from the instruction
of the procedure, if necessary, in addition to sanctioning with a fine.
Therefore, in accordance with the foregoing, by the Director of the Agency
Spanish Data Protection,
HE REMEMBERS:
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 8/11
FIRST: START SANCTION PROCEDURE against BANCO BILBAO VIZCAYA
ARGENTARIA, S.A., with CIF A48265169, for the alleged violation of Article 5.1.f)
of the RGPD and Article 32 of the RGPD, typified in Article 83.5 of the RGPD and Article
83.4, respectively, of the GDPR.
SECOND: APPOINT B.B.B. and, as secretary, to C.C.C.,
indicating that any of them may be challenged, as the case may be, in accordance with
established in articles 23 and 24 of Law 40/2015, of October 1, on the Regime
Legal Department of the Public Sector (LRJSP).
THIRD: INCORPORATE to the disciplinary file, for evidentiary purposes, the
claim filed by the claimant and its documentation, as well as the
documents obtained and generated by the Subdirectorate General for Inspection of
Data in the actions prior to the start of this sanctioning procedure.
FOURTH: THAT for the purposes provided in art. 64.2 b) of Law 39/2015, of 1
October, of the Common Administrative Procedure of the Public Administrations, the
sanction that could correspond would be 50,000 euros for the infraction of the article
5.1.f) of the RGPD, and 30,000 euros for the infringement of article 32 of the RGPD, without
prejudice to what results from the instruction.
FIFTH: NOTIFY this agreement to BANCO BILBAO VIZCAYA
ARGENTARIA, S.A., with CIF A48265169, granting a hearing period of ten
working days to formulate the allegations and present the evidence that it considers
convenient. In your brief of allegations you must provide your NIF and the number of
procedure at the top of this document.
If within the stipulated period it does not make allegations to this initial agreement, the same
may be considered a resolution proposal, as established in article
64.2.f) of Law 39/2015, of October 1, of the Common Administrative Procedure of
Public Administrations (hereinafter, LPACAP).
In accordance with the provisions of article 85 of the LPACAP, you may recognize your
responsibility within the term granted for the formulation of allegations to the
this initiation agreement; which will entail a reduction of 20% of the
sanction to be imposed in this proceeding. With the application of this
reduction, the sanction would be established at 40,000 euros for the infraction of the
article 5.1.f) of the RGPD, and 24,000 euros for the infringement of article 32 RGPD
(64,000 euros in total), resolving the procedure with the imposition of this
sanction.
Similarly, you may, at any time prior to the resolution of this
procedure, carry out the voluntary payment of the proposed sanction, which
will mean a reduction of 20% of its amount. With the application of this reduction,
the sanction would be established at 40,000 euros for the infraction of article 5.1.f) of the
RGPD, and 24,000 euros for the infringement of article 32 RGPD (64,000 euros in total),
and its payment will imply the termination of the procedure.
The reduction for the voluntary payment of the penalty is cumulative with the corresponding
apply for the acknowledgment of responsibility, provided that this acknowledgment
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 9/11
of the responsibility is revealed within the period granted to formulate
arguments at the opening of the procedure. The voluntary payment of the referred amount
in the previous paragraph may be done at any time prior to the resolution. In
In this case, if it were appropriate to apply both reductions, the amount of the penalty would be
established at 30,000 euros for the infringement of article 5.1.f) of the RGPD, and 18,000
euros for the infringement of article 32 of the RGPD, (48,000 euros in total).
In any case, the effectiveness of any of the two reductions mentioned will be
conditioned to the abandonment or renunciation of any action or resource in via
administrative against the sanction.
In case you chose to proceed to the voluntary payment of any of the amounts
indicated above (64,000 euros or 48,000 euros), you must make it effective
by depositing it in account number ES00 0000 0000 0000 0000 0000 open to
name of the Spanish Agency for Data Protection in the bank
CAIXABANK, S.A., indicating in the concept the reference number of the
procedure that appears in the heading of this document and the cause of
reduction of the amount to which it is accepted.
Likewise, you must send proof of payment to the General Subdirectorate of
Inspection to proceed with the procedure in accordance with the quantity
entered.
The procedure will have a maximum duration of nine months from the
date of the start-up agreement or, where appropriate, of the draft start-up agreement.
Once this period has elapsed, it will expire and, consequently, the file of
performances; in accordance with the provisions of article 64 of the LOPDGDD.
Finally, it is pointed out that in accordance with the provisions of article 112.1 of the
LPACAP, there is no administrative appeal against this act.
935-150322
Sea Spain Marti
Director of the Spanish Data Protection Agency
>>
SECOND: On April 28, 2022, the claimed party has proceeded to pay
the sanction in the amount of 48,000 euros making use of the two reductions
provided for in the Start Agreement transcribed above, which implies the
acknowledgment of responsibility.
THIRD: The payment made, within the period granted to formulate allegations to
the opening of the procedure, entails the waiver of any action or resource in via
administrative action against the sanction and acknowledgment of responsibility in relation to
the facts referred to in the Initiation Agreement.
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 10/11
FOUNDATIONS OF LAW
Yo
In accordance with the powers that article 58.2 of Regulation (EU) 2016/679
(General Data Protection Regulation, hereinafter RGPD), grants each
control authority and as established in articles 47 and 48.1 of the Law
Organic 3/2018, of December 5, on the Protection of Personal Data and guarantee of
digital rights (hereinafter, LOPDGDD), is competent to initiate and resolve
this procedure the Director of the Spanish Data Protection Agency.
Likewise, article 63.2 of the LOPDGDD determines that: “The procedures
processed by the Spanish Agency for Data Protection will be governed by the provisions
in Regulation (EU) 2016/679, in this organic law, by the provisions
regulations issued in its development and, as long as they do not contradict them, with a
subsidiary, by the general rules on administrative procedures.”
II
Article 85 of Law 39/2015, of October 1, on Administrative Procedure
Common to Public Administrations (hereinafter, LPACAP), under the rubric
"Termination in sanctioning procedures" provides the following:
"1. Started a sanctioning procedure, if the offender acknowledges his responsibility,
the procedure may be resolved with the imposition of the appropriate sanction.
2. When the sanction is solely pecuniary in nature or it is possible to impose a
pecuniary sanction and another of a non-pecuniary nature, but the
inadmissibility of the second, the voluntary payment by the alleged perpetrator, in
any time prior to the resolution, will imply the termination of the procedure,
except in relation to the replacement of the altered situation or the determination of the
compensation for damages caused by the commission of the infringement.
3. In both cases, when the sanction is solely pecuniary in nature, the
competent body to resolve the procedure will apply reductions of, at least,
20% of the amount of the proposed sanction, these being cumulative with each other.
The aforementioned reductions must be determined in the notification of initiation
of the procedure and its effectiveness will be conditioned to the withdrawal or resignation of
any administrative action or recourse against the sanction.
The reduction percentage provided for in this section may be increased
regulations."
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es, 11/11
According to what was stated,
the Director of the Spanish Data Protection Agency RESOLVES:
FIRST: TO DECLARE the termination of procedure PS/00420/2021, of
in accordance with the provisions of article 85 of the LPACAP.
SECOND: NOTIFY this resolution to BANCO BILBAO VIZCAYA
ARGENTARIA, S.A.
In accordance with the provisions of article 50 of the LOPDGDD, this
Resolution will be made public once it has been notified to the interested parties.
Against this resolution, which puts an end to the administrative procedure as prescribed by
the art. 114.1.c) of Law 39/2015, of October 1, on Administrative Procedure
Common of the Public Administrations, the interested parties may file an appeal
contentious-administrative before the Contentious-administrative Chamber of the
National Court, in accordance with the provisions of article 25 and section 5 of
the fourth additional provision of Law 29/1998, of July 13, regulating the
Contentious-Administrative Jurisdiction, within a period of two months from the
day following the notification of this act, as provided in article 46.1 of the
aforementioned Law.
936-240122
Sea Spain Marti
Director of the Spanish Data Protection Agency
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es
