AEPD (Spain) - PS/00474/2020
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| AEPD (Spain) - PS/00474/2020 | |
|---|---|
 | |
| Authority: | AEPD (Spain) |
| Jurisdiction: | Spain |
| Relevant Law: | Article 21 GDPR Article 48(1)(b) General Telecommunications Act |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | |
| Decided: | 18.05.2021 |
| Published: | 25.05.2021 |
| Fine: | 50000 EUR |
| Parties: | VODAFONE ESPAÑA, S.A.U. |
| National Case Number/Name: | PS/00474/2020 |
| European Case Law Identifier: | n/a |
| Appeal: | n/a |
| Original Language(s): | Spanish |
| Original Source: | AEPD (in ES) |
| Initial Contributor: | n/a |
The Spanish DPA fined Vodafone €50,000 for making more than 250 unsolicited commercial calls to a data subject after they had exercised their right to object.
English Summary
Facts
A data subject filed a complaint with the Spanish DPA (AEPD) stating that he had received more than 250 unsolicited commercial calls from Vodafone after having exercised his right to object in 2017.
The AEPD launched an investigation and discovered that Vodafone, that was determined to be the controller, was using subcontracted companies to carry out commercial activities on their behalf. They either used their own databases, or used the databases provided by Vodafone, which did not contain any exclusion list, nor was such list provided at any point in time.
Holding
The AEPD first noted the fact that the data subject has exercised their right to object under Article 21 GDPR. In the same way, Article 48(1)(b) of the Spanish General Telecommunications Act grants users the right to object to undesired commercial communications. Not complying with such obligation entails a fine up to €2,000,000.
The DPA concluded that Vodafone, as a controller, was responsible for the commercial activities that had been carried out on its behalf. Given that the data subject had exercised their right to object that was uncontested, and continued to receive commercial calls, the DPA determined that Vodafone had violated Article 48(1)(b) of the Spanish General Telecommunications Act, and therefore fined Vodafone €50,000.
The AEPD took into account, as aggravating circumstances:
- the seriousness of the infringement
- the benefit obtained by the controller through such actions
- the harm caused
- the continuation of the infringement during the sanctioning proceedings
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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.
1/14
Procedure No. PS / 00474/2020
RESOLUTION OF SANCTIONING PROCEDURE
Of the procedure instructed by the Spanish Agency for Data Protection and based on
to the following
FACTS
FIRST: A.A.A. (hereinafter, the claimant) filed a claim with this
Spanish Agency for Data Protection (hereinafter AEPD) on 01/23/2020,
in the following terms:
The claim is directed against VODAFONE ESPAÑA, S.A.U. with NIF A80907397 (in
hereinafter, the claimed or VDF), to receive for three years repeatedly and
insistent telephone calls to his telephone number *** TELEPHONE.1, attached to the
Jazztel operator for years, of which he is the owner. Calls are made in
name of the defendant and commercial content in favor of the defendant. The claimant
Provides a certified letter dated 05/25/2017 addressed to the complained party stating the
facts and exercising the right of opposition. It also provides a list with more than
250 phone numbers as incoming calls to your number that claims to be from
promotional content in favor of the claimed.
SECOND: In view of the facts denounced in the claims, of the
documents provided by the claimants and documents of which he has had
knowledge of this AEPD, the Subdirectorate General for Data Inspection proceeded to
carrying out preliminary investigation actions to clarify the
facts in question, by virtue of the powers of investigation granted to the
control authorities in article 57.1 of Regulation (EU) 2016/679 (Regulation
General Data Protection, hereinafter RGPD), and in accordance with the
established in Title VII, Chapter I, Second Section, of Organic Law 3/2018,
of December 5, Protection of Personal Data and guarantee of rights
digital (hereinafter LOPDGDD).
As a result of the documentation provided and the investigation actions
practiced, it is verified that the person responsible for the treatment is the one claimed.
Likewise, the following points are found:
BACKGROUND
Claim entry date: January 23, 2020
INVESTIGATED ENTITIES
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 2/14
MARKTEL, GLOBAL SERVICES, S.A. (hereinafter, the investigated # 1) with NIF
A82236944 and with address at C / SALVATIERRA 5-3º, 28034 MADRID (MADRID),
UNÍSONO SOLUCIONES DE BUSINESS, S.A. (hereinafter, investigated # 2) with
NIF A82365412 and domiciled at C / DOCTOR ZAMENHOF 22, 28027 MADRID
(MADRID),
VODAFONE ESPAÑA, S.A.U. with NIF A80907397 and with address AVENIDA DE
AMÉRICA 115, 28042 MADRID (MADRID) (hereinafter claimed or VDF).
RESULT OF RESEARCH ACTIONS
In the field of Admission to Procedure (art. 65 LOPDGDD) in the file
E / 02258/2020 (origin of this Investigation file E / 06780/2020) of the
AEPD, the defendant identified the investigated # 1 and the investigated # 2 as
“Commercial partners” of yours in customer acquisition calls,
potentially involved in the phone calls to the claimant. According to
framework contracts that operate in this AEPD said collaborating entities act in
quality of those in charge of the treatment on behalf of the claimed.
Regarding the investigated # 1: regarding commercial calls, made
from the originating telephone numbers *** TELEPHONE.2 and *** TELEPHONE.3 (both
assigned numberings investigated # 1) towards the telephone number *** TELEPHONE.1
between May 25, 2017 and the present, in order to promote the services of
the claimed and based on the contract of the person in charge of the treatment on behalf of
VDF states the following:
Calls are made based on the framework contract for the provision of
services and as the person in charge of the treatment in the name and for how much
VDF to be carried out between your entity and the one claimed dated February 2018 (NRE:
O00007128e2000008610), and is provided as documentary evidence.
The records to which calls have been issued with an offer
commercial on behalf of the claimed are those contained in the bases of
data provided by its clients (VODAFONE ESPAÑA, S.A.U. and VODAFONE
ONO, S.A.U.) containing only the telephone numbering, without containing
no other identifying data of the line holders
The claimant's telephone number was obtained, specifically, at:
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 3/14
o VODAFONE CAMPAIGN FIXED LOW VALUE
Originating entity: VODAFONE ESPAÑA, S.A.U.
Upload date: 2017-09-12
Database name: CAR170911133205
Delivery medium: SFTP
o ONO POTENTIAL EMISSION HI VAL
Originating entity: VODAFONE ONO, S.A.U.
Date: 06/05/2017 at 3:28 p.m.
Upload date: 2017-02-28; Database name:
CAR170228111649.
Upload date: 2017-05-03 Database name:
CAR170502154341.
Delivery medium: SFTP
The databases are delivered by VODAFONE ESPAÑA, S.A.U. Y
VODAFONE ONO, S.A.U., not determining for its part the profile of the
records, nor having segmented the databases
received.
Not having received exclusion files from VODAFONE at your entity
SPAIN, S.A.U. and VODAFONE ONO, S.A.U, on the databases
referenced, in the indicated period.
Not having call recording or extra information that could
be provided, as they are databases from the year 2017.
Regarding the investigated # 2: regarding commercial calls, made with
telephone number of origin *** TELEPHONE 4 (numbering assigned to investigated # 2)
towards the telephone number *** TELEPHONE 1 of the claimant, between May 25,
2017 to date, and based on the framework contract for the provision of services and in
quality of data controller on behalf of and on behalf of VDF to be carried out between
its entity and the claimed dated June 2019 (NRE: 02477382020), states that
following:
“i) the contact number *** TELEPHONE.1 has not been used to
broadcast in the services of VODAFONE ESPAÑA, S.A.U. (with NIF
A80907397), or companies of its business group of services of
telecommunication; Y
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 4/14
ii) that no calls have been made from our switchboard using the
telephone of origin indicated *** TELEPHONE.4 ”.
Regarding the claimed (VDF): In writing dated 05/04/2020 and NRE:
024771/2020, at the request of the AEPD, the respondent states, in summary, what
following:
The claimant has exercised his right to object to the treatment of his
data by registered letter sent on May 25, 2017.
It has been checked whether the calling numbers indicated by the claimant in his
claim are recorded in our database of telephone numbers that
use our collaborators to make recruitment calls and it has been
verified that several of them are associated with the following
collaborators of the door to door channel:
954 781 254 D2D_Casmar
964 800 099 D2D_Casmar
912 303 310 D2D_Casmar
910 888 516 D2D_Solivesa
910 120 123 D2D_Three-Quarters Full S.L.
919 034 107 D2D_Three-Quarters Full S.L.
965 060 481 D2D_Three-Quarters Full S.L
965 060 483 D2D_Three-Quarters Full S.L
910 888 992 D2D_ Three-Quarters Full S.L
965 272 727 D2D_Three-Quarters Full S.L
The respondent states that these “collaborators” do not address the bases of
data provided by Vodafone, but use their own databases.
(From the investigations of this AEPD, there are the contractual documents
that relate to Casmar, Solviesa and Three Quarters Full and that act in
quality of those in charge of the treatment on behalf of the claimed (file
PS / 00059/2020)).
It has also been possible to verify that three of the calling numbers
that the claimant indicates in their claim, are recorded in the VDF database
of telephone numbers that our "collaborators" use to carry out
pickup calls, and we have verified that they are associated with the
following entities in charge of the treatment in the name and on behalf of
VDF:
963 055 400 Televenta_Marktel_Outbound_Potencial_Valencia
963 060 950 Online_Marktel_Valencia_ONO_Outbound_Valencia
935 010 142 Televenta_Unisono.
THIRD: By Agreement dated December 22, 2020, the Director of the
Spanish Data Protection Agency agreed to initiate a sanctioning procedure at the
claimed for the alleged violation of Article 48.1.b) of Law 9/2014, of 9
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 5/14
May, General Telecommunications (hereinafter LGT) in relation to art. twenty-one
of the RGPD, classified as serious in Article 77.37 of the LGT, which may be
sanctioned with a fine of up to 2,000,000 euros, in accordance with article 79.1.c)
of the same LGT.
FOURTH: On 01/28/2021, the defendant presented allegations to the agreement of
initiation of sanctioning procedure in the following terms:
1. The claimant's number was not (as of 03/11/2020) included in the
Adigital call exclusion list, having been included from the
claim on the internal exclusion list from 04/01/2020.
2. The calling numbers referred to the entities Casmar, Solivesa and The
Theree Quarters, are the sole responsibility of the entities themselves when
use your own databases.
3. Only the calling numbers of three entities (Televenta Marktel, Online
Marktel and Unisono) act in the name and on behalf of Vodafone España SAU
(hereinafter VDF) (Telesales Marktel: *** TELEPHONE. 2, Online Marktel:
*** PHONE. 3, Unisono: *** PHONE. 4)
4. VDF adds that in the cases of suppliers that use their own
databases as responsible for them, VDF has “given them
clear instructions that they have an obligation to exclude data from
people included in public lists of opposition to receiving calls
commercial "(sic). This exclusion is only the responsibility of those entities.
collaborators and not VDF. This argument is reiterated throughout the statement of
allegations.
5. Article 23.4 of the LOPDGDD states that it will not be necessary to consult the
the one referred to in the preceding paragraph when the affected party has provided
consent to receive commercial communications and, in the present case,
It has not been proven that the VDF collaborating entities carried out
calls without the complainant's consent.
6. In cases where VDF provides its own databases, these are
provided previously filtered, and the claimant does not record that he has exercised his
exclusion until 04/01/2020, the date on which it is included in the internal list of
VDF exclusions.
7. VDF has an established procedure for the attention of rights
of those interested in commercial communications, both electronic and
by phone call, and are attended by a specialized team in accordance with
points out article 21 of the RGPD.
8. Regarding the seriousness of the infractions previously committed by their
collaborators in similar cases, VDF alleges that they act as
responsible and cannot be imputed to VDF, and a sanction cannot be imposed in
the present procedure based on separate files and unrelated to the
Present.
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 6/14
9. Failure to comply with the right of opposition exercised by the
claimant is due in any case to an unintentional action, lacking
benefit for VDF.
10. Regarding the damage caused and its reparation, VDF alleges that it has proceeded to
include the complainant on its internal advertising exclusion list, and is
implementing adequate measures to avoid the repetition of the events. Such
measures are provided in procedure PS / 00059/2020 instructed by the
AEPD.
FIFTH: On 02/24/2021 the examining body issued a Proposal for Resolution
in the following terms:
<That the Director of the Spanish Data Protection Agency sanctions
VODAFONE ESPAÑA, S.A.U. with NIF A80907397, with a fine of € 50,000 (fifty
thousand euros) for the violation of Article 48.1.b) of the LGT, in relation to Article 21
of the RGPD, classified as serious in Article 77.37 of the LGT, and order the
implementation of corrective measures that prevent future recurrence
similar facts>.
SIXTH: On 03/15/2021, the defendant presented allegations to the Proposal for
Resolution in the following terms:
1.- VDF is not responsible for the treatment now analyzed since the
Responsible parties are the collaborating entities that made the call to the
claimant from their own files.
2.- The claimant was not included in the advertising exclusion list
Robinson of Adigital, so he could not be excluded from the recruitment campaigns of
customers.
3.- Regarding the exercise of the right of opposition exercised by registered letter,
VDF does not know.
4.- VDF considers that art. 25 of the EC to be punishing a
specific infringement of the same precept for which it has been previously punished in the
framework of commercial campaigns of a certain period of time that has been
subject to inspection by the Agency and sanctioned in its maximum amount.
5.- VDF alleges that the amount of the sanction is disproportionate.
In view of all the actions, by the Spanish Agency for Data Protection
In this proceeding, the following are considered proven facts,
PROVEN FACTS
FIRST: The claimant exercised the right to object to receive calls
telephone calls to the complained party on 05/25/2017 without evidence that it was attended
by VDF.
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 7/14
SECOND: On 01/23/2020, the claimant filed a claim with this
AEPD against VDF for receiving insistent and continuous calls since 2017
until January 2020 on your line *** PHONE. 1.
THIRD: VDF is responsible for the treatments carried out by the entities
aforementioned contracted to carry out the advertising calls in the capacity of
in charge of the treatment, acting on behalf of VDF, which is the one that
determines the purpose and means. Thus, it is accredited in the procedure
PS / 00059/2020 of which VDF is aware of having alleged it in the present
process.
FOURTH: The claimant provides a list of about two hundred calling numbers to his
line from 2017 to January 2020. From these calling numbers VDF recognizes
(as written dated 07/13/2020, nre: 024771/2020) numbers belonging to their
collaborators, both with their own databases and with databases provided
for the claimed.
FIFTH: The calling entity UNISONO, in the name and on behalf of VDF (according to
contributed contract), does not recognize calls.
The calling entity MARKTEL, in the name and on behalf of VDF, affirms that the bases
of data of calling numbers were facilitated by VDF according to contract that facilitates
between both entities. It also confirms that the call to the claimant's number is
made based on said contract and was provided by VDF in the database that
facilitated. Provide documentary of commercial calls on behalf of and on behalf of VDF
after the date of exercise of the right of opposition by the claimant. Add
that VDF did not send exclusion files from 2017 to date (November
2020).
SIXTH: The numbers of the
calling entities Casmar, Solivesa, The Theree Quarters, Marktel and Unisono who
act on behalf of and on behalf of VDF as data processors
according to the contracts provided and thus it is accredited in the procedure
PS / 00059/2020 of which VDF is aware of having alleged it in the present
process.
Regarding the last two, VDF acknowledges having provided the databases
own for the advertising action now analyzed.
SEVENTH: The claimant filed a complaint against VDF with the authorities of
Consumption of the Principality of Asturias on 11/15/2019, reiterating the right to
opposition to receiving calls on behalf of VDF.
EIGHTH: On 04/01/2020, VDF included in its internal exclusion list
advertising the claimant's phone number.
FOUNDATIONS OF LAW
I
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 8/14
In accordance with the provisions of article 84.3) of the LGT, the competence to
initiate and resolve this Penalty Procedure corresponds to the Director of
the Spanish Agency for Data Protection.
II
Regarding the allegations presented by the person in charge (VDF) to the initiation agreement,
the following should be noted:
1R) <The claimant's number was not (as of 03/11/2020) included in the
Adigital call exclusion list, having been included from the
claim on the internal exclusion list since 1/04/2020>.
It is proven that the claimant exercised the right of opposition before VDF in
date 05/25/2017, so it should have been attended and, where appropriate, included on that date in
the internal advertising exclusion list.
2R) <The calling numbers referred to the entities Casmar, Solivesa and The Theree
Quarters, the entities themselves are the sole responsibility when using databases
own data>.
It is already proven before this AEPD that the treatment now analyzed by the
The aforementioned entities are carried out in the name and on behalf of VDF, the latter acting in
quality of person in charge when defining the purpose and means. In this regard, the VDF itself
brings up the file PS / 00059/2020 that affects and knows him.
3R) <Only the calling numbers of three entities (Televenta Marktel, Online
Marktel and Unisono) act in the name and on behalf of Vodafone España SAU (in
ahead VDF) (Telesales Marktel: *** PHONE. 2, Online Marktel: *** PHONE. 3,
Unisono: *** PHONE. 4)>
Already answered in the previous one, extensive result to the latter entities.
4R) <VDF adds that in the cases of suppliers that use their own databases
of data as responsible for them, VDF “has given them instructions
clear that they have an obligation to exclude the data of the persons included in
public lists of opposition to the reception of commercial calls ”(sic). Bliss
Exclusion is only the responsibility of those collaborating entities and not VDF. This argument
it is reiterated throughout the statement of allegations.>
From the allegation itself it is inferred that VDF is responsible for the treatments now
analyzed, since VDF confirms that it is the one who provides the instructions for the
Treatment object of order to the entities that use their own databases
on purpose and means.
5R) <Article 23.4 of the LOPDGDD states that it will not be necessary to consult the
referred to in the preceding paragraph when the affected party has provided his
consent to receive commercial communications and, in the present case, has not
It has been proven that the VDF collaborating entities made calls without
the claimant's consent.>
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 9/14
Already answered in the previous ones, since not only did they lack authorization to
perform the treatment now analyzed, but rather that the claimant had exercised
previously the right of opposition before VDF as responsible (echo proven
first) and before the consumer authorities of the Principality of Asturias (Fact
tested seventh) and there is no evidence that he has provided the entities in charge
advertising exclusion records.
6R) <In cases where VDF provides its own databases, these are
provided previously filtered, and the claimant does not record that he has exercised his
exclusion until 04/01/2020, the date on which it is included in the internal list of
VDF exclusions>.
It is evident that VDF did not provide the entities in charge of the treatment with the bases
of filtered data to be treated, since it is established that the claimant previously exercised
the right to object to VDF:
7R) <VDF has an established procedure for the attention of the rights
of those interested in commercial communications, both electronic and by
telephone call, and are attended by a specialized team as indicated in art
21 of the GDPR>
Without prejudice to the veracity of the statement made and not accredited, the truth and
proven is that the alleged procedure for attention to rights has not been
sufficient to avoid the violation of the rights and freedoms of the claimant, therefore
must be corrected.
8R) <Regarding the seriousness of the infractions previously committed by their
collaborators in similar cases, VDF alleges that they act as responsible and
cannot be imputed to VDF, and no penalty may be imposed at this time
procedure based on separate and unrelated files.>
In the present case, VDF is not charged with sanctions for “separate and
unrelated to the present ”, but it is considered aggravating to their conduct according to
establishes article 80 of the LGT.
9R) <The fact of not having attended the right of opposition exercised by the
claimant is due in any case to an unintentional action, devoid of benefit
for VDF>.
In the present case, and with the repetitions of similar behaviors accredited in
this AEPD, it is not plausible that it refers to a punctual conduct, but to a management
deficient of the general procedure established by VDF for the care of
rights of the interested parties.
10R) <Regarding the damage caused and its repair, VDF alleges that it has proceeded to
include the complainant in its internal advertising exclusion list, and is implementing
adequate measures to avoid the repetition of the events. Such measures consist of
provided in procedure PS / 00059/2020 instructed by the AEPD>.
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 10/14
It is meant that the damage caused to the claimant has been evident and significant.
having to have filed two claims against VDF in order for the
advertising calls, in defense of your rights.
Consequently, the allegations to the initiation agreement must be rejected.
II
Regarding the allegations presented by the person in charge (VDF) to the Proposal of
Resolution, the following should be noted:
1R) <VDF is not the data controller now analyzed since the
Responsible parties are the collaborating entities that made the call to the
claimant from their own files>.
Regarding the first claim, it has already been answered in section 2R) of the
resolution proposal in the following terms:
“It is already proven before this AEPD that the treatment now analyzed by the
The aforementioned entities are carried out in the name and on behalf of VDF, the latter acting in
quality of person in charge when defining the purpose and means. In this regard, the VDF itself
brings up the file PS / 00059/2020 that affects and knows him ”.
2R) <The claimant was not included in the advertising exclusion list
Robinson of Adigital, so he could not be excluded from the recruitment campaigns of
clients>.
Regarding the second claim, it has already been answered in section 1R) of the
own resolution proposal in the following terms:
“It is proven that the claimant exercised the right of opposition before VDF in
date 05/25/2017, so it should have been attended and, where appropriate, included on that date in
the internal advertising exclusion list ”.
3R) <Regarding the exercise of the right of opposition exercised by letter
certified, VDF does not know>.
In the same sense as in the previous allegation, the exercise of the
right of opposition in the terms set forth from the documentation sent by
the claimant. However, and as VDF now alleges, the lack of organizational means
and technicians implanted in the organization has prevented the right to exercise
worse the claimant, which has caused the infraction to occur now
sanctioned.
4R) <VDF considers that art. 25 of the EC to be punishing a
specific infringement of the same precept for which it has been previously punished in the
framework of commercial campaigns of a certain period of time that has been
object of inspection by the Agency and sanctioned in its maximum amount>.
It should be noted that the previous sanctioning procedures, although they keep
relative to the current one, they are independent of each other with different claimants in
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 11/14
different advertising performances. In the present case, this reiteration of the conduct
offender is considered as aggravating for the imposition of this sanction.
It should be added that the claim that it has already been subject to inspection by
the Agency and sanctioned in its maximum amount does not adjust to reality since,
In the present case, it has not been subject to a prior face-to-face inspection by the
inspection of this AEPD nor the more than fifty previous infractions have been
sanctioned with a maximum amount.
5R) <5.- VDF alleges that the amount of the penalty is disproportionate>.
Regarding the lack of proportionality in the amount of the penalty, it should be noted
which corresponds to 2.5% of the maximum legally foreseen, and the graduation is
has established in accordance with the following criteria indicated in article 80 of the
LGT and that are indicated in the FD V of this resolution.
Consequently, the allegations to the Motion for Resolution must be
dismissed.
III
Article 21 of the General Data Protection Regulation 2016/679, hereinafter
RGPD), regarding the right of opposition, states the following:
"1. The interested party will have the right to object at any time, for reasons
related to your particular situation, what personal data concerning you
are subject to a treatment based on the provisions of Article 6 (1),
letters e) or f), including profiling based on these provisions.
The data controller will stop processing personal data, unless
prove compelling legitimate reasons for the treatment that prevail over the
interests, rights and freedoms of the interested party, or for the formulation, the
exercise or defense of claims.
2. When the purpose of the processing of personal data is marketing
direct, the interested party will have the right to object at any time to the treatment of
personal data concerning you, including profiling in the
insofar as it is related to the aforementioned marketing.
3. When the interested party opposes the treatment for direct marketing purposes,
personal data will no longer be processed for these purposes.
4. At the latest at the time of the first communication with the interested party, the
right indicated in sections 1 and 2 will be explicitly mentioned to the interested party
and it will be presented clearly and apart from any other information.
5. In the context of the use of information society services, and not
Notwithstanding the provisions of Directive 2002/58 / EC, the interested party may exercise his
right to object by automated means that apply specifications
techniques.
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 12/14
6. When personal data is processed for scientific research or
historical or statistical purposes in accordance with Article 89 (1), the
The interested party will have the right, for reasons related to their particular situation, to
oppose the processing of personal data concerning you, unless it is
necessary for the fulfillment of a mission carried out for reasons of interest
public".
IV
Article 48.1.b) of Law 9/2014, of May 9, General Telecommunications (in
hereinafter, LGT), included in its Title III, which indicates the following:
"Article 48. Right to the protection of personal data and privacy in relation to
with unsolicited communications, with traffic and location data and with
subscriber guides.
1. Regarding the protection of personal data and privacy in relation to
unsolicited communications end users of communications services
electronic companies will have the following rights:
(…)
b) To oppose receiving unwanted calls for commercial communication purposes
that are carried out through systems other than those established in the previous letter and to
be informed of this right. "
The offense is classified as serious in article 77.37 of said rule, which considers
as such: "The serious violation of the rights of consumers and users
final, as established in Title III of the Law and its implementing regulations ”.
This infraction can be sanctioned with a fine of up to 2,000,000 euros, according to
with article 79.1.c) of the aforementioned LGT.
V
In the present case, it is proven that the claimed entity (VDF) is the
responsible for the treatments carried out by the indicated managers whenever
act in the name and on behalf of VDF and the latter decides on the purpose and means of the
treatment.
It also appears that on behalf of VDF the aforementioned persons in charge of the treatment
made in the period between 2017 and 2020 telephone calls to the
complainant continuously and insistently when he had previously exercised the
right of opposition to VDF to receive calls, specifically, by letter
certified dated 05/25/2017 without stating that such right has been attended by
VDF. The claimant also had to file a claim on 11/15/2019
before the Consumer Agency of the Principality of Asturias so that the
VDF advertising calls.
In accordance with the evidence available at the present time,
considers that the sanction to be imposed should be adjusted in accordance with the following
criteria established in article 80 of the LGT:
As aggravating factors:
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 13/14
a) The seriousness of the offenses previously committed by the subject to whom the
sanctions. There are more than 50 previous sanctioning procedures in this AEPD
against VDF in the last two years.
c) The benefit that has been reported to the offender by the fact that is the subject of the offense. The
promotional actions such as the one now analyzed are aimed at obtaining
business benefits, both direct and indirect, regardless of their
amount, benefiting the claimed by avoiding investments in the improvement of the means
organizational and technical measures to prevent this type of infraction in the future, in accordance with
indicates article 29.2 of Law 40/2015, of October 1, on the Legal Regime of the Sector
Public.
d) The damage caused and its repair. The claimant has had to initiate actions of
claim before this AEPD and before the Consumer Agency of the Principality of
Asturias. There are no remedial actions by VDF that did not include the
claimant on your internal call exclusion list up to 04/01/2020,
three years after exercising the right to object.
g) The cessation of the infringing activity, previously or during the processing of the
sanctioning file. The cessation of the infringing activity is not recorded before this Agency
as soon as VDF had knowledge, because it delayed the supposed correction (which does not appear
accredited) once the investigative actions carried out by this
AEPD.
Considering the aforementioned precepts and others of general application, the Director of the Agency
Spanish Data Protection RESOLVES:
FIRST: IMPOSE VODAFONE ESPAÑA, S.A.U. with NIF A80907397, for one
violation of Article 48.1.b) of the LGT, classified as serious in Article 77.37 of
the LGT, a fine of € 50,000 (fifty thousand euros).
SECOND: NOTIFY this resolution to VODAFONE ESPAÑA, S.A.U ..
THIRD: Warn the sanctioned person that the sanction imposed must be effective
once this resolution is enforceable, in accordance with the provisions of the
Article 98.1.b) of Law 39/2015, of October 1, on Administrative Procedure
Common of Public Administrations, within the voluntary payment period indicated in the
Article 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 17
December, by entering the restricted account number ES00 0000 0000 0000 0000
0000, opened in the name of the Spanish Agency for Data Protection in the entity
banking CAIXABANK, S.A. or otherwise, it will be collected in
executive period.
Received the notification and once executive, if the date of execution is found
Between the 1st and the 15th of each month, both inclusive, the deadline for making the payment
volunteer will be until the 20th of the following or immediately subsequent 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 immediate business month.
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es 14/14
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 administrative proceedings (article 48.6 of the
LOPDGDD), and in accordance with the provisions of articles 112 and 123 of the Law
39/2015, of October 1, of the Common Administrative Procedure of the
Public Administrations, the interested parties may file, optionally,
appeal for reconsideration before the Director of the Spanish Agency for Data Protection
within a month from the day following notification of this
resolution or directly administrative contentious appeal before the Chamber of
Contentious-administrative of the National Court, in accordance with the provisions of the
Article 25 and in section 5 of the fourth additional provision of Law 29/1998, of
July 13, regulator of the Contentious-administrative Jurisdiction, within the period of
two months from the day following the notification of this act, as
provided for in article 46.1 of the aforementioned legal text.
Finally, it is pointed out that in accordance with the provisions of art. 90.3 a) of Law 39/2015,
of October 1, of the Common Administrative Procedure of the Administrations
Public, the final resolution may be suspended provisionally through administrative channels if
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 Agency for Data Protection, presenting it through
of the Electronic Registry of the Agency [https://sedeagpd.gob.es/sede-electronica-
web /], or through any of the other records provided for in art. 16.4 of the
cited Law 39/2015, of October 1. You must also transfer to the Agency the
documentation that proves the effective filing of the contentious appeal-
administrative. If the Agency was not aware of the filing of the appeal
contentious-administrative within a period of two months from the day following the
notification of this resolution would terminate the precautionary suspension.
815-141020
Mar Spain Martí
Director of the Spanish Agency for Data Protection
C / Jorge Juan, 6 www.agpd.es
28001 - Madrid sedeagpd.gob.es
