AEPD (Spain) - EXP202105333
From GDPRhub
| AEPD - PS-00505-2022 | |
|---|---|
 | |
| Authority: | AEPD (Spain) |
| Jurisdiction: | Spain |
| Relevant Law: | Article 6(1) GDPR |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | 19.10.2021 |
| Decided: | |
| Published: | 25.04.2023 |
| Fine: | 70,000 EUR |
| Parties: | n/a DIGI SPAIN TELECOM, S.L. |
| National Case Number/Name: | PS-00505-2022 |
| European Case Law Identifier: | n/a |
| Appeal: | Appealed - Confirmed AEPD (Spain) REPOSICION-PS-0505-2022 |
| Original Language(s): | Spanish |
| Original Source: | AEPD (in ES) |
| Initial Contributor: | isabela.maria.rosal |
The Spanish DPA imposed a fine of €70,000 on Digi Spain Telecom for providing an unauthorized duplicate of the data subject's SIM card to a third party that used it for identity theft.
English Summary
Facts
Digi Spain Telecom, the controller, received a call requesting a duplicate of a SIM card. During the call, the controller asked the interlocutor to provide several personal data to confirm their identity and verify that they were the holder of the SIM card.
After incorrectly authenticating the caller, the controller provided them with a code to request the duplicate SIM card. That same day, the caller went to the controller's distribution point where it used the code to get the requested duplicate SIM card.
The data subject then filed a complaint with the Spanish DPA against the controller. They claimed that the unauthorized provision of the duplicate SIM card enabled a third party to use it for the practice of identity theft, which caused them serious financial losses. According to the data subject, the SIM card was used to bypass a bank authentication system and carry out transfers from the data subject's account pretending to be its holder. The controller was accused of violating Article 6(1) GDPR.
In response, the controller claimed that it did not provide any personal data to the fraudster and denied that there was any illegal processing of data. In addition, it argued that the provision of the duplicate SIM card is not sufficient to carry out bank transfers.
Holding
From the proven facts, the AEPD concluded that the controller negligently provided a duplicate SIM card to someone other than the legitimate holder of the mobile line, after this third party overcame its authentication methods.
It stated that, when providing the duplicate SIM card at its distribution point, the controller could have requested the data subject's original identity document, thus avoiding the fraud. It held that there was a breach of the duty to protect customer information as the controller failed to guarantee an adequate level of security in the processing of personal data.
The AEPD considered that, from the moment the fraudster replaced the original SIM, they gained control over the data subject's personal data and became able to access their bank accounts.
In the end, the AEPD concluded that this entailed a illegal processing since a third party gained access to personal data without any legal basis. For these reasons, it found a violation of Article 6(1) GDPR and imposed a fine of €70,000 on the controller.
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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.
1/16
File No.: EXP202105333
RESOLUTION OF SANCTIONING PROCEDURE
Of the procedure instructed by the Spanish Agency for Data Protection and based on
to the following
BACKGROUND
FIRST: Ms. A.A.A. (hereinafter, "the complaining party") dated October 19
of 2021 filed a claim with the Spanish Agency for Data Protection. The
claim is directed against DIGI SPAIN TELECOM, S.L. with NIF B84919760 (in
hereinafter, "the claimed party" or "DIGI"). The reasons on which the claim is based are
the following:
The complaining party declares to have suffered identity theft, in relation to
with the obtaining by a third party of a duplicate of your SIM card, which caused you
economic damage, since numerous transfers were made from its
Bank account.
It indicates as the date on which the events occurred September 2, 2021.
And, provide the following relevant documentation:
- Report to the Civil Guard.
- Extracts of the bank movements with notes of the transfers made
for the third.
SECOND: In accordance with article 65.4 of Organic Law 3/2018, of 5
December, Protection of Personal Data and guarantee of digital rights (in
forward LOPDGDD), said claim was transferred to the claimed party, for
to proceed with its analysis and inform this Agency within a month of the
actions carried out to adapt to the requirements established 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 January 4, 2022 as
It appears in the acknowledgment of receipt that is in the file.
On February 3, 2022, this Agency received a written response
indicating that once the facts have been analyzed by the data controller, they have
verified that on September 2, 2021 they received a call from a
person who identified themselves as the claimant requesting the issuance of a duplicate
of the SIM card, which in this call, the issuer was able to correctly provide
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all the personal data of the claimant, including the last four digits of the
Bank account; being able to pass the established security policy. likewise
provided a numerical code, necessary to be able to continue with the next phase of the
process of obtaining the duplicate.
After being aware of the facts, the person responsible recommended to the
claimant make a new duplicate of the fraudulently issued SIM card and
that it could recover control of its line, proceeding to issue a new one on
September 3, 2021, the previously issued duplicate being blocked
and the possibility of making a new one of said mobile line.
The data controller adopted a series of measures to resolve the
incidence, including:
- Immediate rectification of the element causing the incident: issuing a
new duplicate and proceeding to deactivate the previous one. (activation
fraudulent was operational from 7:09 p.m. on 09/02/2021 until 2:26 p.m.
approximately on 09/03/2021, in which the claimant was able to recover the
line).
- After the detection of the incident and the restitution of control of the line to the
claimant, they proceeded to the preventive blocking of new procedures related to the
itself, limiting its processing to the prior receipt of an authorization signed together with
with a photocopy of the DNI of the owner of the services.
Finally, in order to put a stop to future episodes of SIM Swapping, by the entity
Security measures are being strengthened to prevent fraudulent actions of the
same type as that contemplated in the claim.
THIRD: In accordance with article 65 of Organic Law 3/2018, of 5
December, Protection of Personal Data and guarantee of digital rights
(LOPDGDD), when submitted to the Spanish Data Protection Agency
(hereinafter, AEPD) a claim, it must evaluate its admissibility for processing,
must notify the claimant of the decision on the admission or non-admission to
procedure, within three months from the date the claim was entered into this
Agency. If, after this period, there is no such notification, it will be understood
that the processing of the claim continues in accordance with the provisions of Title
VIII of the Law. Said provision is also applicable to the procedures
that the AEPD would have to process in the exercise of the powers assigned to it
attributed by other laws.
In this case, taking into account the foregoing and that the claim is
filed with this Agency, on October 19, 2021, the party is informed
claimant that his claim has been admitted for processing on January 19,
2022, as three months have elapsed since it entered the AEPD.
FOURTH: The General Subdirectorate of Data Inspection proceeded to carry out
of previous investigative actions to clarify the facts in
matter, by virtue of the functions assigned to the control authorities in the
article 57.1 and the powers granted in article 58.1 of the Regulation (EU)
2016/679 (General Data Protection Regulation, hereinafter GDPR), and
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in accordance with the provisions of Title VII, Chapter I, Second Section, of the
LOPDGDD, having knowledge of the following extremes:
RESULT OF INVESTIGATION ACTIONS
(…)
FIFTH: On October 3, 2022, the Director of the Spanish Agency for
Data Protection agreed to initiate disciplinary proceedings against the claimed party,
in accordance with the provisions of articles 63 and 64 of Law 39/2015, of October 1,
of the Common Administrative Procedure of Public Administrations (in
hereinafter, LPACAP), for the alleged infringement of Article 6.1 of the GDPR, typified in
Article 83.5 of the GDPR.
SIXTH: On October 13, 2022, DIGI requests the extension of the legal term
conferred to answer said requirements and a copy of the file.
SEVENTH: On October 25, 2022, it is received at this Agency, on time and
form, written by the representative of DIGI in which, in summary, it is argued that
reiterate in the allegations previously presented, first pointing out that
chronological manner in which the events occurred, indicating the security protocol and
the measures adopted for these events, stating that DIGI has not made available
disposition of the alleged criminals personal information of the complainant
different from what they already had before. Consequently, it has not been
produced an unauthorized processing of personal data. That is, during the
process of request and delivery of the duplicate there is a treatment of the data
personal information provided to DIGI in order for it to verify the identity of the
interlocutor, first by telephone and later in person.
In addition, DIGI states that it has been proven that in this case
They followed the established security protocols, as can be seen from the
documentary in this file.
The procedure established by DIGI required the display of the document, but it was not
preserved its image, while said treatment was not considered
essential.
On the other hand, it points out that the AEPD unequivocally imposes on DIGI a
strict liability, in which, regardless of the diligence and measures
deployed, the entity is found guilty. The AEPD seems to confuse the
concept of proactive responsibility with the obligation of result imposed by the
strict liability. In the present case, the existence of a
strict control, before and after the application of the duplicate, the establishment of
prior and subsequent measures, as well as the existence of measures aimed at
Avoid these practices in advance.
For this reason, the claimed party considers that this Startup Agreement is not
adjusted to law, since it imposes on DIGI an obligation of result, based on
only in the harmful result that is produced by the fraudulent activity of a
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third, regardless of the diligence used and without considering the deployment of measures
technically adequate and implemented.
In addition, it indicates that the following extenuating circumstances currently exist
that have not been considered in the appropriate graduation of the sanction:
The absence of previous infringements committed by DIGI (art. 83.2 e) GDPR).
At no time have special categories of data been processed (Art. 83.2 g)
GDPR)
The degree of cooperation of DIGI with the AEPD in order to remedy a
alleged infringement and mitigate its possible adverse effects (art. 83.2 f) GDPR).
The non-existent benefit obtained (Art. 83.2 k).
It requests that a resolution be issued by means of which it indicates the file of the
procedure.
Subsidiarily warning and, ultimately, moderate or modulate the
proposal included in the Initiation Agreement
EIGHTH: On October 27, 2022, the instructor of the procedure agreed
practice the following tests: 1. They are considered reproduced for probative purposes the
claim filed by Ms. A.A.A. and its documentation, the documents
obtained and generated during the phase of admission to processing of the claim, and the
report of previous investigation actions that are part of the procedure
AI/00074/2022. 2. Likewise, it is considered reproduced for evidentiary purposes, the
allegations to the agreement to initiate the aforementioned sanctioning procedure,
presented by DIGI SPAIN TELECOM, S.L., and the documentation that they
accompanies.
NINTH: On December 2, 2022, a resolution proposal was formulated,
proposing that the Director of the Spanish Data Protection Agency
sanction DIGI SPAIN TELECOM, S.L., with NIF B84919760, for an infringement of the
Article 6.1 of the GDPR, typified in Article 83.5 a) of the GDPR, the sanction that
would correspond would be a fine for an amount of 70,000 euros (seventy thousand euros).
TENTH: Once the proposed resolution was notified, the defendant requested an extension
term to formulate allegations that was granted, presented a brief of
allegations on February 2, 2023 in which, in summary, it is argued that it is reiterated in
the allegations previously presented, and that in the report issued by the Agency
of Cybersecurity of the European Union ratifies that, to make a duplicate
SIM fraud, the fraudster needs to have access to some of the data
personal data of the victim, client of the operator. That is, that cybercriminals,
have personal data of their victims prior to going before the
Mobile Network Operator.
He points out that this is what happened in this case, the victim lost control
about your personal data in favor of the impersonator prior to the latter
contact DIGI, as evidenced by the recording provided and that proves that
the applicant unequivocally provides the personal data of the Claimant.
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"Furthermore, for more emphasis, in the present case and as they have had the opportunity to
set forth earlier in the writings of this part, the store clerk
expressly states that it did carry out said verification, without it being possible to question
doubt his statement without further argument than the result of the impersonation of
identity. Thus, there is the possibility that even following the protocol and having
Requested a copy of the DNI is false. Furthermore, the fact that
had made a photocopy of that document would not have added more
operational security.
That is why the claimed party considers that the Proposal is not adjusted to
right, since it imposes on DIGI an obligation of result, consisting of the
establishment of infallible measures, when imputing a violation of article 6.1 of the
GDPR based solely on the harmful result that is produced by the
fraudulent intervention by a third party, regardless of the diligence used and without
consider the deployment of technically adequate and implemented measures.
DIGI cannot anticipate or know what the applicable duty of care is.
On the lack of proportionality of the proposed sanction and that prior to the procedures
timely, a resolution is issued by means of which the file of the procedure is indicated
No. PS/0533/2021”.
Of the actions carried out in this procedure and of the documentation
in the file, the following have been accredited:
PROVEN FACTS
FIRST: The claimant filed a claim with this Agency on the 19th of
October 2021 in which it is stated that they have suffered identity theft
on September 2, 2021, in connection with the obtaining by a third party of a
duplicate of your SIM card, which caused economic damage, since it was
made numerous transfers from his bank account.
SECOND: DIGI accredits, that effectively on September 2, 2021
received a call from a third person who identified himself as the party
claimant requesting the issuance of a duplicate SIM card.
THIRD: It is verified that the claimed party proceeded to issue a code of
application for a duplicate SIM card, that same day the applicant appears
at a DIGI distribution point. There they proceed to issue the SIM card to said
third party that was not the owner of the line.
FUNDAMENTALS OF LAW
Yo
Competence
In accordance with the powers that article 58.2 of Regulation (EU) 2016/679
(General Data Protection Regulation, hereinafter GDPR), grants each
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control authority and as established in articles 47, 48.1, 64.2 and 68.1 of the
Organic Law 3/2018, of December 5, Protection of Personal Data and
guarantee of digital rights (hereinafter, LOPDGDD), is competent to
initiate and resolve this procedure the Director of the Spanish Protection Agency
of data.
Likewise, article 63.2 of the LOPDGDD determines that: "Procedures
processed by the Spanish Data Protection Agency will be governed by the provisions
in Regulation (EU) 2016/679, in this organic law, by the provisions
regulations dictated in its development and, insofar as they do not contradict them, with character
subsidiary, by the general rules on administrative procedures.”
II
Breached Obligation
The claimed party is accused of committing an offense for violation of the
Article 6 of the GDPR, "Legacy of the treatment", which indicates in its section 1 the
cases in which the processing of third-party data is considered lawful:
"1. Processing will only be lawful if at least one of the following is fulfilled
conditions:
a) the interested party gave his consent for the processing of his personal data
for one or more specific purposes;
b) the treatment is necessary for the execution of a contract in which the interested party
is part of or for the application at the request of the latter of pre-contractual measures;
c) the processing is necessary for compliance with a legal obligation applicable to the
responsible for the treatment;
d) the processing is necessary to protect the vital interests of the data subject or of another
Physical person;
e) the treatment is necessary for the fulfillment of a mission carried out in the interest
public or in the exercise of public powers conferred on the data controller;
f) the treatment is necessary for the satisfaction of legitimate interests pursued
by the person in charge of the treatment or by a third party, provided that on said
interests do not outweigh the interests or fundamental rights and freedoms of the
interested party that require the protection of personal data, in particular when the
interested is a child. The provisions of letter f) of the first paragraph shall not apply.
application to processing carried out by public authorities in the exercise of their
functions”.
II
Classification and classification of the offense
The infringement is typified in article 83.5 of the GDPR, which considers as such:
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"5. Violations of the following provisions will be penalized, in accordance with the
section 2, with administrative fines of a maximum of 20,000,000 EUR or,
in the case of a company, an amount equivalent to a maximum of 4% of the
total annual global business volume of the previous financial year, opting for
the highest amount:
a) The basic principles for the treatment, including the conditions for the
consent in accordance with articles 5,6,7 and 9.”
The LOPDGD, for the purposes of the prescription of the infringement, qualifies in its article 72.1
very serious infringement, in this case the limitation period is three years, "b)
The processing of personal data without the fulfillment of any of the conditions of
legality of the treatment established in article 6 of Regulation (EU) 2016/679”.
In response to the allegations presented by the respondent entity, it should be noted
the next:
Regarding Digi not making available to the alleged criminals
personal information of the claimant other than that already held by those with
anteriority. Consequently, there has been no unauthorized treatment of
personal information.
Indeed, the issuance of a duplicate is not enough to carry out operations
bank accounts on behalf of the holders, certainly, to complete the scam, it is
necessary for a third party to "supplant the identity" of the owner of the data before the entity
financial.
What entails a priori, a treatment outside the principle of legality because a
third party is processing data, since it has access to them, without any legal basis, in addition
of the violation of other principles such as confidentiality.
For this reason, this is a process where the diligence provided by the
operators is essential to avoid this type of scam and violation of the GDPR.
Diligence that translates into the establishment of adequate measures to guarantee
that the data processing is in accordance with the GDPR.
Identical considerations deserve the actions of banking entities that
provide payment services, in which area this type of scam starts, since
the third party has access to the affected user's credentials and poses as
this.
While these entities are responsible for the processing of the data of their
customers, they are responsible for the same obligations as those indicated up to now for the
operators referring to compliance with the RGPD and the LOPDGDD, and also the
derived from Royal Decree-Law 19/2018, of November 23, on payment services and
other urgent financial measures.
From the Proven Facts, it can be deduced that Digi has provided duplicate SIM cards to
a third party other than the legitimate owner of the mobile line, after overcoming by third parties
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people of the existing security policy, which evidences a breach of the
duty to protect customer information.
Denying any negligent action by Digi would be tantamount to
recognize that their conduct -by action or omission- has been diligent. Obviously not
We share this perspective of the facts, since the
lack of due diligence. It is very illustrative, the SAN of October 17, 2007
(rec. 63/2006), assuming that these are entities whose activity involves
in continuous treatment of customer data, indicates that "...the Supreme Court comes
understanding that imprudence exists whenever a legal duty of
be careful, that is, when the offender does not behave with the required diligence. And in the
assessment of the degree of diligence, professionalism must be especially considered
or not of the subject, and there is no doubt that, in the case now examined, when the
The appellant's activity is constant and abundant handling of personal data.
staff must insist on rigor and exquisite care in adjusting to the
legal provisions in this regard.
It is proven in the file that security has not been guaranteed
appropriate in the processing of personal data, taking into account the result that
identity theft has occurred. That is, a third party has managed to access
to the personal data of the owner of the line.
Regarding the fact that criminals have not managed to obtain personal data from
Digi, so there can be no talk of breach of protection measures,
point out that access to a duplicate SIM card that makes its user identifiable
owner, responds to the definition of personal data in article 4.1) of the GDPR.
Regarding Digi's responsibility, it should be noted that, in general, Digi
processes the data of its clients under the provisions of article 6.1 b) of the GDPR,
as it is considered a necessary treatment for the execution of a contract in which
the interested party is part or for the application at his request of measures
pre-contractual In other cases, it bases the legality of the treatment on the bases
provided for in article 6.1.a), c), e) and f) of the GDPR.
On the other hand, to complete the scam, it is necessary for a third party to "impersonate the
identity” of the owner of the data, to receive the duplicate of the SIM card. Which
entails a priori, a treatment outside the principle of legality since a third party is
processing data, since it has access to them, without any legal basis, in addition to the
violation of other principles such as confidentiality.
Certainly, the principle of responsibility provided for in article 28 of the LRJSP,
provides that: "They may only be penalized for acts constituting an infringement
administrative authority for natural and legal persons, as well as when a Law
recognize capacity to act, affected groups, unions and entities without
legal personality and independent or autonomous estates, which result
responsible for them by way of fraud or negligence.”
However, the mode of attribution of liability to legal persons is not
corresponds to the willful or reckless forms of guilt that are imputable
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to human behavior. So, in the case of offenses committed by
legal persons, even if the element of guilt must be present, it will be
necessarily applies differently from what is done with respect to persons
physical.
According to STC 246/1991 "(...) this different construction of the imputability of self-
The infringement of the legal entity arises from the very nature of legal fiction
to which these subjects respond. The volitional element in the strict sense is lacking in them.
to, but not the ability to break the rules to which they are subject.
Infringement capacity and, therefore, direct reproach that derives from the good
protected by the rule being infringed and the need for such protection
is really effective and because of the risk that, consequently, the person must assume
that is subject to compliance with said standard" (in this sense STS of 24
November 2011, Rec 258/2009).
To the foregoing must be added, following the judgment of January 23, 1998,
partially transcribed in the SSTS of October 9, 2009, Rec 5285/2005, and of 23
of October 2010, Rec 1067/2006, that "although the guilt of the conduct must
also be the object of proof, must be considered in order to assume the
corresponding charge, which ordinarily the volitional and cognitive elements
necessary to appreciate it are part of the typical behavior tested, and that its
exclusion requires that the absence of such elements be proven, or in its aspect
regulations, that the diligence that was required by the person claiming their
nonexistence; In short, it is not enough to exculpate a behavior
the invocation of the absence of guilt is typically unlawful".
Accordingly, the plea is dismissed. ultimate responsibility
on the treatment continues to be attributed to the person in charge, who is the one who determines the
existence of the treatment and its purpose. Let us remember that, in general, the
operators process the data of their customers under the provisions of article 6.1
b) of the GDPR, as it is considered a necessary treatment for the execution of a
contract in which the interested party is a party (…). In this sense, DIGI has a
network of sales representatives, points of sale and authorized distributors through a
distribution contract to offer DIGI services. Among these services
offered from their points of sale, is making duplicate SIM cards
corresponding to a mobile telephone line.
Regarding the breach of the principle of proportionality, the GDPR provides
expressly the possibility of graduation, through the provision of fines
subject to modulation, in response to a series of circumstances of each case
individual.
Regarding the imposition of a warning, warning, or the adoption of
corrective measures pursuant to article 58 of the GDPR, a deterrent fine is
one that has a genuine deterrent effect. In this regard, the Judgment of the
CJEU, of June 13, 2013, Versalis Spa v Commission, C-511/11,
ECLI:EU:C:2013:386, says:
“ 94. Regarding, firstly, the reference to the Showa Denko v Commission judgment,
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quoted above, it should be noted that Versalis interprets it incorrectly. Indeed,
the Court of Justice, when stating in section 23 of said judgment that the factor
deterrent is assessed taking into consideration a multitude of elements and not only the
particular situation of the company in question, referred to points 53 to 55 of
the conclusions presented in that case by Advocate General Geelhoed, who
had stated, in essence, that the deterrent multiplier factor
may be aimed at not only "general deterrence", defined as an action
to discourage all companies, in general, from committing the infringement of
in question, but also a "specific deterrence", consisting of dissuading the
particular defendant so that he or she does not break the rules again in the future. For the
Therefore, the Court of Justice only confirmed, in that judgment, that the Commission did not
was required to limit its assessment to factors related solely to the
particular situation of the company in question.”
“102. According to settled case law, the objective of the dissuasive multiplying factor and
consideration, in this context, of the size and overall resources of the
company in question lies in the desired impact on said company, since the
sanction should not be insignificant, especially in relation to the ability
of the company (in this sense, see, in particular, the judgment of 17
June 2010, Lafarge v Commission, C-413/08 P, ECR p. I-5361, section 104, and the writ
of February 7, 2012, Total and Elf Aquitaine v Commission, C-421/11 P, paragraph 82).
We must attend to the unique circumstances of the claim presented, through
from which it can be seen that, from the moment the person
impersonator performs the SIM replacement, the victim's phone is left without
service passing control of the line to the impersonators. Consequently,
their powers of disposal and control over their personal data are affected, which
constitute part of the content of the fundamental right to data protection
as indicated by the Constitutional Court in Judgment 292/2000, of 30
November 2000 (FJ 7). So, when getting a duplicate SIM card,
Under certain circumstances, access to the contacts or the
applications and services that have as a key recovery procedure the
sending an SMS with a code to be able to modify the passwords. Definitely,
may impersonate the identity of those affected, being able to access and control, for
example: email accounts; bank accounts; apps like
WhatsApp; social networks, such as Facebook or Twitter, and a long etc. in short
accounts, once the password has been modified by the impersonators, they lose
control of your accounts, applications and services, which poses a great threat.
In short, it is the data controller who has the obligation to integrate the
necessary guarantees in the treatment, with the purpose of, by virtue of the principle of
proactive responsibility, comply and be able to demonstrate compliance, at the same
while respecting the fundamental right to data protection.
In the present case, it is proven that on September 2, 2021 DIGI
processed the issuance of a duplicate SIM card for line ***TELEPHONE.1,
belonging to the complaining party.
However, it should be noted that Sim Swapping is a fraud that allows you to impersonate
identity by kidnapping the phone number by obtaining a duplicate of
the SIM card.
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In any case, the operator must be able to prove that for this specific case
have followed the verification protocols implemented when requesting a
duplicate SIM card.
Well then, the result was that the defendant issued the SIM card to a third party who did not
he was the owner of the line.
In view of the foregoing, DIGI is unable to prove that this
procedure.
In fact, the establishment where the duplicate SIM card was issued must have
the original of the identification document has been verified, provided that, if
If this operation had been carried out correctly, the duplicate should have been
denied.
In the explanation provided by the claimed party, it does not indicate which could have
been the specific cause that led to the issuance of the duplicate, beyond
some generic explanations about a fraudulent activity of a third party. Throughout
case, the claimed party has not been able to prove that for this case
follow the procedure implanted by herself, since, if she had done so, she would
should have produced duplicate SIM card denial.
Based on the foregoing, in the case analyzed, the
diligence used by the defendant to identify the person who requested
a duplicate SIM card.
Based on the available evidence, it is estimated that the conduct
of the claimed party could violate article 6.1 of the GDPR and may be
constituting the offense classified in article 83.5.a) of the aforementioned Regulation
2016/679.
In this sense, Recital 40 of the GDPR states:
"(40) For processing to be lawful, personal data must be processed with the
consent of the interested party or on some other legitimate basis established in accordance
a Law, either in this Regulation or under other Union law
or of the Member States referred to in this Regulation, including the
the need to comply with the legal obligation applicable to the data controller or the
need to execute a contract to which the interested party is a party or for the purpose of
take measures at the request of the interested party prior to the conclusion of a
contract."
IV.
Fine sanction. Determination of the amount.
The determination of the sanction that should be imposed in the present case requires
observe the provisions of articles 83.1 and 2 of the GDPR, precepts that,
respectively, provide the following:
"1. Each control authority will guarantee that the imposition of fines
administrative proceedings under this article for violations of this
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Regulations indicated in sections 4, 9 and 6 are in each individual case
effective, proportionate and dissuasive.”
"2. Administrative fines will be imposed, depending on the circumstances of each
individual case, in addition to or in lieu of the measures contemplated in
Article 58, paragraph 2, letters a) to h) and j). When deciding to impose a fine
administration and its amount in each individual case shall be duly taken into account:
a) the nature, seriousness and duration of the offence, taking into account the
nature, scope or purpose of the processing operation in question, as well as
such as the number of interested parties affected and the level of damages that
have suffered;
b) intentionality or negligence in the infringement;
c) any measure taken by the person in charge or in charge of the treatment to
settle the damages suffered by the interested parties;
d) the degree of responsibility of the person in charge or of the person in charge of the treatment, habi-
gives an account of the technical or organizational measures that have been applied by virtue of the
articles 25 and 32;
e) any previous infringement committed by the controller or processor;
f) the degree of cooperation with the supervisory authority in order to remedy the
infringement and mitigate the potential adverse effects of the infringement;
g) the categories of personal data affected by the infringement;
h) the way in which the supervisory authority became aware of the infringement, in
particular whether the person in charge or the person in charge notified the infringement and, if so, in what
extent;
i) when the measures indicated in article 58, paragraph 2, have been ordered
previously against the person in charge or the person in charge in relation to the
same matter, compliance with said measures;
j) adherence to codes of conduct under article 40 or to certification mechanisms.
fications approved in accordance with article 42, and
k) any other aggravating or mitigating factor applicable to the circumstances of the case,
as the financial benefits obtained or the losses avoided, directly or indirectly.
mind, through infraction.”
Within this section, the LOPDGDD contemplates in its article 76, entitled "Sancio-
and corrective measures”:
"1. The sanctions provided for in sections 4, 5 and 6 of article 83 of the Regulation
(UE) 2016/679 will be applied taking into account the graduation criteria
established in section 2 of said article.
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2. In accordance with the provisions of article 83.2.k) of Regulation (EU) 2016/679
may also be taken into account:
a) The continuing nature of the offence.
b) The link between the activity of the offender and the performance of data processing.
personal information.
c) The benefits obtained as a consequence of the commission of the infraction.
d) The possibility that the conduct of the affected party could have led to the commission
of the offence.
e) The existence of a merger by absorption process subsequent to the commission of the
violation, which cannot be attributed to the absorbing entity.
f) The affectation of the rights of minors.
g) Have, when it is not mandatory, a data protection delegate.
h) Submission by the person responsible or in charge, on a voluntary basis, to
alternative conflict resolution mechanisms, in those cases in which
there are controversies between those and any interested party.
3. It will be possible, complementary or alternatively, the adoption, when appropriate, of
the remaining corrective measures referred to in article 83.2 of the Regulation
(EU) 2016/679.”
Digi requests that the following extenuating circumstances be appreciated:
(I) "the absence of prior infringements" (art. 83.2 e) GDPR).
(II) "At no time have special categories of data been processed" (art. 83.2 g).
(III) "cooperation with the supervisory authority in responding to the transfer of the
claim and having provided the requested information”, article 83.2 f) of the GDPR.
(IV) "The non-existence of benefits obtained through the infringement", article 83.2 k)
of the GDPR and 76.2 c) of the LOPDGDD.
None of the invoked mitigations are allowed.
Regarding (I) and (II), it should be noted that such circumstances can only operate as
aggravating and in no case as mitigating.
The pronouncement made by the National Court in its SAN of May 5, 2021
(Rec. 1437/2020) on section e) of article 83.2. of the GDPR, the commission of
previous violations:
"Considers, on the other hand, that the non-commission should be considered as mitigating
from a previous violation. Well, article 83.2 of the GDPR establishes that
must be taken into account for the imposition of the administrative fine, among
others, the circumstance "e) any previous infringement committed by the person responsible or
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the person in charge of the treatment". This is an aggravating circumstance, the fact
The fact that the budget for its application does not meet implies that it cannot be
taken into consideration, but does not imply or allow, as the plaintiff claims,
its application as a mitigation”;
(III) Article 83.2.f) of the GDPR refers to the "degree of cooperation with the
control in order to remedy the infringement and mitigate the possible effects
adverse effects of the offence;”. The respondent's response to the information request
of the Sub-directorate of Inspection did not meet these purposes, so it is not
framed in that mitigation.
(IV) On the application of article 76.2.c) of the LOPDGDD, in connection with the
Article 83.2.k), non-existence of benefits obtained, it should be noted that such
circumstance can only operate as an aggravating circumstance and in no case as a mitigating circumstance.
Article 83.2.k) of the GDPR refers to "any other aggravating or mitigating factor
applicable to the circumstances of the case, such as the financial benefits obtained or the
losses avoided, directly or indirectly, through the breach.” and the article
76.2c) of the LOPDGDD says that “2. In accordance with the provisions of article 83.2.k) of the
Regulation (EU) 2016/679 may also be taken into account: [..] c) The benefits
obtained as a consequence of the commission of the infraction.” Both provisions
mentioned as a factor that can be taken into account in grading the sanction
the "benefits" obtained, but not the "absence" of these, which is what Digi alleges.
In addition, in accordance with article 83.1 of the GDPR, the imposition of fine sanctions
is governed by the following principles: they must be individualized for each
particular case, be effective, proportionate and dissuasive. The admission that it operates
as a mitigation, the absence of benefits is contrary to the spirit of article 83.1
of the GDPR and the principles governing the determination of the amount of the
fine penalty. If, as a result of the commission of a violation of the GDPR, it is classified as
mitigating the fact that there have been no benefits, the dissuasive purpose that
is fulfilled through the sanction. Accept Digi's thesis in a case like the one
we are dealing with would mean introducing an artificial reduction in the penalty that truly
it should be imposed; the one that results from considering the circumstances of article 83.2
GDPR that must be valued.
The Administrative Litigation Chamber of the National Court has warned that the
fact that in a specific case not all the elements that
constitute a circumstance that modifies liability that, by its nature,
has an aggravating nature, cannot lead to the conclusion that said circumstance is applicable
as a mitigation. The pronouncement made by the National Court in its
SAN of May 5, 2021 (Rec. 1437/2020) -even though that resolution is seen
on the circumstance of section e) of article 83.2. of the GDPR, the commission of
previous infractions - can be extrapolated to the question raised, the claim of the
demanded that the "absence" of benefits be accepted as mitigation, thus
that both the GDPR and the LOPDGDD refer only to "the benefits obtained":
"Considers, on the other hand, that the non-commission should be considered as mitigating
from a previous violation. Well, article 83.2 of the GDPR establishes that
must be taken into account for the imposition of the administrative fine, among
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others, the circumstance "e) any previous infringement committed by the person responsible or
the person in charge of the treatment". This is an aggravating circumstance, the fact
The fact that the budget for its application does not meet implies that it cannot be
taken into consideration, but does not imply or allow, as the plaintiff claims,
its application as a mitigation”;
In accordance with the transcribed precepts, and without prejudice to what results from the
instruction of the procedure, in order to set the amount of the fine to
impose on the entity claimed as responsible for an infringement classified in the
article 83.5.a) of the RGPD and 72.1 b) of the LOPDGDD, are considered concurrent in the
present case the following factors:
As aggravating factors:
- The evident link between the business activity of the defendant and the
treatment of personal data of clients or third parties (article 83.2.k, of the
GDPR in relation to article 76.2.b, of the LOPDGDD).
The Judgment of the National Court of 10/17/2007 (rec. 63/2006), in which,
with respect to entities whose activity entails the continuous processing of
customer data, indicates that "...the Supreme Court has understood that
recklessness exists whenever a legal duty of care is neglected, that is
that is, when the offender does not behave with the required diligence. And in the
assessment of the degree of diligence, special consideration must be given to the
professionalism or not of the subject, and there is no doubt that, in the case now
examined, when the appellant's activity is constant and abundant
handling of personal data must insist on rigor and exquisite
Be careful to comply with the legal provisions in this regard.”
As mitigations:
The claimed party proceeded to resolve the incident that is the subject of the claim
effective (art. 83.2 c).
The balance of the circumstances contemplated in article 83.2 of the GDPR, with
regarding the offense committed by violating the provisions of article 6.1 of the
GDPR allows a penalty of 70,000 euros (seventy thousand euros) to be set.
Therefore, in accordance with the applicable legislation and assessed the criteria of
graduation of sanctions whose existence has been accredited, the Director of the
Spanish Data Protection Agency RESOLVES:
FIRST: IMPOSE DIGI SPAIN TELECOM, S.L., with NIF B84919760, for a
violation of Article 6.1 of the GDPR, typified in Article 83.5 of the GDPR, a fine
of 70,000 euros (seventy thousand euros)-
SECOND: NOTIFY this resolution to DIGI SPAIN TELECOM, S.L.
THIRD: Warn the penalized person that they must make the imposed sanction effective
Once this resolution is enforceable, in accordance with the provisions of Article
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art. 98.1.b) of Law 39/2015, of October 1, on Administrative Procedure
Common of Public Administrations (hereinafter LPACAP), within the payment term
voluntary established in art. 68 of the General Collection Regulations, approved
by Royal Decree 939/2005, of July 29, in relation to art. 62 of Law 58/2003,
of December 17, by means of its income, indicating the NIF of the sanctioned and the number
of procedure that appears in the heading of this document, in the account
restricted IBAN number: ES00 0000 0000 0000 0000 0000, open in the name of the Agency
Spanish Data Protection Agency at the bank CAIXABANK, S.A.. In the event
Otherwise, it will proceed to its collection in the executive period.
Once the notification has been received and once executed, if the execution date is
between the 1st and 15th of each month, both inclusive, the term to make the payment
voluntary will be until the 20th day of the following or immediately following business month, and if
between the 16th and the last day of each month, both inclusive, the payment term
It will be until the 5th of the second following or immediately following business month.
In accordance with the provisions of article 50 of the LOPDGDD, this
Resolution will be made public once the interested parties have been notified.
Against this resolution, which puts an end to the administrative process in accordance with art. 48.6 of the
LOPDGDD, and in accordance with the provisions of article 123 of the LPACAP, the
Interested parties may optionally file an appeal for reversal before the
Director of the Spanish Agency for Data Protection within a period of one month from
count from the day following the notification of this resolution or directly
contentious-administrative appeal 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 for in article 46.1 of the
referred Law.
Finally, it is noted that in accordance with the provisions of art. 90.3 a) of the LPACAP,
may provisionally suspend the firm resolution in administrative proceedings if the
The interested party expresses his intention to file a contentious-administrative appeal.
If this is the case, the interested party must formally communicate this fact through
writing addressed to the Spanish Data Protection Agency, presenting it through
of the Electronic Registry of the Agency [https://sedeagpd.gob.es/sede-electronica-
web/], or through any of the other registries provided for in art. 16.4 of the
aforementioned Law 39/2015, of October 1. You must also transfer to the Agency the
documentation proving the effective filing of the contentious appeal-
administrative. If the Agency was not aware of the filing of the appeal
contentious-administrative proceedings within a period of two months from the day following the
Notification of this resolution would terminate the precautionary suspension.
Mar Spain Marti
Director of the Spanish Data Protection Agency
C/ Jorge Juan, 6 www.aepd.es
28001 – Madrid sedeagpd.gob.es
