APD/GBA (Belgium) - 133/2024
From GDPRhub
| APD/GBA - 133/2024 | |
|---|---|
 | |
| Authority: | APD/GBA (Belgium) |
| Jurisdiction: | Belgium |
| Relevant Law: | Article 17 GDPR |
| Type: | Complaint |
| Outcome: | Rejected |
| Started: | |
| Decided: | 25.10.2024 |
| Published: | |
| Fine: | n/a |
| Parties: | n/a |
| National Case Number/Name: | 133/2024 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | Gegevensbeschermingsautoriteit (in NL) |
| Initial Contributor: | elu |
The DPA dismissed the complaint related an employee´s depiction in brochures, mailings and training sessions of their former employer.
English Summary
Facts
An employee, the data subject, was depicted, against their will, in brochures, mailings and training sessions of their former employer, a security company, the controller.
On 5 March 2024, the data subject files a complaint with the Belgian DPA for an alleged infringement of Article 17 GDPR. The complaint is found admissible on the basis of Article 58 and 60 GDPR and subsequently transferred to the Belgian DPA.
Holding
The DPA dismissed the complaint on the ground of policy considerations.
First, it held that the data subject failed to demonstrate that it had exercised its rights vis-à-vis the controller as they did not provide sufficient evidence about attempts to exercise their right to erasure as per Article 17 GDPR.
Second, the data subject did not provide sufficient evidence about an unlawful processing of personal data, i.e. the photographs in the brochure, mailings and training sessions.
Comment
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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.
1/5 Dispute resolution Decision 133/2024 of 25 October 2024 File number: DOS-2024-01206 Subject: complaint regarding use of photos by former employee, among others, brochures and mailings The Dispute Resolution of the Data Protection Authority, composed of Mr Hielke HIJMANS, sole chair; 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 referred to as the “GDPR”; Having regard to the law of 3 December 2017 establishing the Data Protection Authority, hereinafter referred to as “WOG”; Having regard to the internal rules of procedure, as approved by the Chamber of Representatives on 20 December 2018 and published in the Belgian Official Gazette on 15 January 2019; Having regard to the documents in the file; Has taken the following decision regarding: Complainant: X, hereinafter referred to as “the complainant” Defendant: Y, hereinafter referred to as “the defendant” Decision 133/2024 — 2/5 I. Facts and procedure 1. The subject of the complaint concerns the fact that the complainant is depicted inappropriately in the brochures of her former employer, which is a security company. The complainant sends in support of the foregoing copies of the brochures on which photos of a woman are indeed shown. 2. On 5 March 2024, the complainant files a complaint with the Data Protection Authority against the defendant. 3. On 2 April 2024, the complaint is declared admissible by the First Line Service on the basis of Articles 58 and 60 WOG and the complaint is transferred to the Dispute Resolution Chamber on the basis of Article 62, § 1 WOG. II. Reasoning 4. Based on the elements in the file known to the Dispute Resolution Chamber and on the basis of the powers assigned to it by the legislator on the basis of Article 95, § 1 WOG, the Dispute Resolution Chamber decides on the further follow-up of the file; in this case the Dispute Resolution Chamber proceeds to dismiss the complaint in accordance with Article 95, § 1, 3° WOG, on the basis of the reasoning below. 5. When a complaint is dismissed, the Dispute Chamber must motivate its decision in stages and: - pronounce a technical dismissal if the file contains no or insufficient elements that could lead to a conviction, or if there is insufficient prospect of a conviction due to a technical impediment, which prevents it from reaching a decision; - or pronounce a policy dismissal if, despite the presence of elements that could lead to a sanction, continuing the investigation of the file does not seem appropriate in light of the priorities of the Data Protection Authority, as specified and explained in the Dispute Chamber's policy on dismissal. 2 6. In the event that a complaint is dismissed on more than one ground, the grounds for dismissal (respectively 3 technical dismissal and policy dismissal) must be dealt with in order of importance. 1Court of Appeal Brussels, Market Court Section, 19 Chamber A, Market Affairs Chamber, judgment 2020/AR/329, 2 September 2020, p. 18. 2 In this regard, the Dispute Chamber refers to its policy of dismissal as set out in detail on the website of the GBA: https://www.gegevensbeschermingsautoriteit.be/publications/sepotbeleid-van-de-geschillenkamer.pdf 3 Cf. Title 3 – In which cases will my complaint likely be dismissed by the Dispute Chamber? of the dismissal policy of the Dispute Chamber. Decision 133/2024 — 3/5 7. In the present file, the Dispute Chamber will dismiss the complaint, on the basis of the policy of dismissal. There are two reasons for the decision of the Dispute Chamber why it considers it undesirable to continue with the case and therefore decides not to proceed, inter alia, to a hearing on the merits.4 8. Firstly, the complainant has not been able to demonstrate that she has exercised her rights vis-à-vis the controller. After all, her complaint is not accompanied by any evidence showing that she has exercised her rights to have her photos deleted in accordance with Article 17 GDPR. Furthermore, the complainant states that her employment with the controller was terminated in an unpleasant manner. She therefore does not wish to contact her former employer. 9. Secondly, according to the Dispute Chamber, the complainant has not substantiated with sufficient evidence that the defendant has processed her photos unlawfully. The complainant states in the complaint that her photos were used more often in the past in brochures, mailings and additional training. Although she indicates that she did not give prior permission for this, the Dispute Chamber concludes from the above that the complainant agreed to be depicted in the brochures and other material of the processor for a longer period of time. Furthermore, it is not clear whether, and if so, what agreements existed in this regard between the complainant and the defendant. The Dispute Chamber therefore has insufficient evidence to be able to pass judgment on the lawfulness of the processing by the defendant. III. Publication and communication of the decision 10. Given the importance of transparency with regard to the decision-making of the Dispute Chamber, this decision is published on the website of the Data Protection Authority. However, it is not necessary for the identification data of the parties to be made public directly for this purpose. 11. In accordance with its policy on dismissal, the Dispute Chamber will communicate the decision to the defendant 5 . After all, the Dispute Chamber has decided to notify its decisions on dismissal ex officio to the defendants. However, the Dispute Chamber will refrain from such notification if the complainant has requested anonymity with regard to the defendant and notification of the decision to the defendant(s), even 4Cf. criterion A.2 in the Dispute Chamber's policy on dismissal. 5Cf. Title 5 – Will the dismissal of my complaint be published? Will the opposing party be informed of this? of the Dispute Chamber's policy on dismissal. Decision 133/2024 — 5/5 In order to enable the complainant to consider other possible remedies, the Dispute Chamber refers the complainant to the explanation in its policy on dismissal. 9 (Get). Hielke H IJMANS Chair of the Dispute Chamber 9Cf. Title 4 – What can I do if my complaint is closed? of the Dispute Chamber's policy of dismissal.
