AEPD (Spain) - PS/00263/2021
|AEPD (Spain) - PS/00263/2021|
Article 21 LSSI
|Parties:||NATURAL LOGISTICS, S.L.|
|National Case Number/Name:||PS/00263/2021|
|European Case Law Identifier:||n/a|
|Original Source:||AEPD (in ES)|
|Initial Contributor:||Carmen Villarroel|
The Spanish DPA fined a logistics company €1,800 for sending an individual unsolicited commercial communications after they had exercised their right to object.
English Summary[edit | edit source]
Facts[edit | edit source]
The data subject filed a complaint with the Spanish DPA (AEPD) after receiving unsolicited commercial communications from the logistics company Natural Logistics S.L. The complainant continued to receive several commercial e-mails, after exercising their right to object. Although the company answered that they had deleted the data subjects mail-address from the database, they continued to send commercial mails to that address.
Holding[edit | edit source]
The AEPD considered that the company infringed Article 21 of the Spanish law regulating cookies and unsolicited commercial communications (LSSI). This law prohibits companies from sending unwanted or unsolicited commercial communications as conducted by the company. Therefore, the DPA fined the company €3,000, which was reduced to €1,800 for an early payment and the acknowledgement of responsibility.
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English Machine Translation of the Decision[edit | edit source]
The decision below is a machine translation of the Spanish original. Please refer to the Spanish original for more details.
1/10 File No.: PS / 00263/2021 RESOLUTION OF TERMINATION OF THE PROCEDURE BY PAYMENT VOLUNTARY Of the procedure instructed by the Spanish Agency for Data Protection and based on to the following BACKGROUND FIRST: On June 24, 2021, the Director of the Spanish Agency for Data Protection agreed to initiate a sanctioning procedure against NATURAL LOGISTICS, S.L. (hereinafter, the claimed party), through the Agreement that is transcribe: << Procedure No.: PS / 00263/2021 AGREEMENT TO START THE SANCTIONING PROCEDURE Of the actions carried out by the Spanish Agency for Data Protection and in based on the following BACKGROUND FIRST: On September 16, 2020, you entered this Agency Spanish Data Protection (hereinafter AEPD) written claim, to which It was assigned as file number E / 08277/2020. C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 2/10 Said brief was presented for an alleged violation of article 21 of the LSSI, for the following circumstances: A.A.A. has filed a claim with the AEPD against NATURAL LOGISTICS, S.L. for the non-consensual referral of commercial communications to your address electronic mail: *** EMAIL. 1. The claim shows that you have received several communications commercial of the claimed entity and that has exercised its right of opposition before the same so as not to continue receiving them. On June 4, he received a response from the entity claimed in which they informed him that "we will remove him from our list right now." However, and despite said response from the respondent, the claimant has continued receiving your commercial communications. SECOND: In accordance with the mechanism prior to the admission for processing of the claims that are made before the AEPD, provided for in article 65.4 of the Law Organic 3/2018, of December 5, Protection of Personal Data and guarantee of digital rights (hereinafter, LOPDGDD), which consists of transferring the same to the Data Protection Delegates appointed by those responsible or those in charge of the treatment, or to them when they have not designated them, and with the purpose indicated in the aforementioned article, the claim was transferred to NATURAL LOGISTICS, S.L. (hereinafter, the claimed party) to proceed to his analysis and gave a response within a month, which he verified by writing of date of entry into this Agency of November 11, 2020. On November 19, he entered this Agency, at the request of the itself, written by the claimed entity, attaching the answer sent to the party claimant in response to your claim. THIRD: On November 24, 2020, after analyzing the documentation that was in the file, a resolution was issued by the Director of the Spanish Agency of Data Protection, agreeing the non-admission to processing of the claim. The resolution was notified to the now appellant, on January 7, 2021, according to notice of receipt that appears in the file. C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 3/10 FOURTH: On February 8, 2021, the appellant files an appeal optional replacement through the Electronic Registry of the AEPD, against the resolution relapsed in file E / 08277/2020, in which it shows its disagreement with the contested resolution, arguing that although the entity The respondent stated in his response to this Agency that he had deleted the email from the claimant dated October 15, 2020, has received 10 emails since that date more advertising. Provide a copy of three emails received on dates 15 and 19 December 2020 and January 4, 2021. FIFTH: As new relevant documentation has been provided for the purposes of the raised, the Director of the Spanish Data Protection Agency resolves ESTIMATE the appeal for reconsideration filed by A.A.A. against the resolution of this Agency issued on November 24, 2020, by which it was agreed that the Admission to processing of the claim related to NATURAL LOGISTICS, S.L. and open the following sanctioning procedure PS / 00263/2021. FACTS FIRST: A.A.A. (hereinafter, the claimant) dated February 8, 2021 filed a claim with the Spanish Data Protection Agency. The claim is directed against NATURAL LOGISTICS, S.L. with CIF B84147065 (in forward, the claimed one). The reasons on which the claim is based are that, although the defendant has affirmed before this Agency that he had deleted his email on October 15, 2020, has continued to receive new advertising emails. Along with the claim, the claimant provides a copy of 3 messages received on the date after October 15, 2020. C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 4/10 SECOND: In view of the facts denounced in the claim and the documents provided by the claimant, the Subdirectorate General for Inspection of Data proceeded to carry out preliminary investigation actions for the clarification of the facts in question, by virtue of the powers of investigation granted to the control authorities in article 57.1 of the Regulation (EU) 2016/679 (General Data Protection Regulation, hereinafter RGPD), and of in accordance with the provisions of Title VII, Chapter I, Second Section, of the Law Organic 3/2018, of December 5, Protection of Personal Data and guarantee of digital rights (hereinafter LOPDGDD). As a result of the investigative actions carried out, it is verified that the responsible for the treatment is the claimed one. FOUNDATIONS OF LAW In accordance with the provisions of art. 43.1, second paragraph, of the Law 34/2002, of July 11, on Services of the Information Society and Commerce Electronic, (LSSI), is competent to initiate and resolve this Procedure Sanctioner, the Director of the Spanish Agency for Data Protection. II In the present case, the claimant indicates that although the claimed entity has affirmed before this Agency that he had deleted the email address of the claimant, on October 15, 2020, has received a new advertising email and another three more, after this date. Sending advertising emails without the consent of the recipient, could constitute an infringement of the provisions of article 21 of the LSSI, by establishing this article, that: C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 5/10 "1. The sending of advertising or promotional communications by email or other equivalent electronic means of communication that had not previously been requested or expressly authorized by the recipients of the same. 2. The provisions of the previous section shall not be application when there is a prior contractual relationship, provided that the provider had obtained the recipient's contact details lawfully and used them for sending commercial communications regarding products or services of your own company that are similar to those that were initially the subject of contracting with the client. In any case, the provider must offer the recipient the possibility of opposing the processing of your data for promotional purposes through a simple and free procedure, both at the time of data collection as in each of the commercial communications that I address. When the communications had been sent by email, said medium must necessarily consist of the inclusion of an email address or another valid email address where this right can be exercised, being prohibited sending communications that do not include said address. " The aforementioned offense is classified as minor in art. 38.4.d) of bliss standard, which qualifies as such, “Sending commercial communications by mail electronic or other equivalent electronic means of communication when in said shipments do not meet the requirements established in article 21 and do not constitute Serious offense". In accordance with the provisions of article 39.1.c) of the LSSI, minor offenses may be sanctioned with a fine of up to € 30,000, establishing the criteria for its graduation in article 40 of the same rule. After the evidence obtained, and without prejudice to what results from the instruction, considers that the sanction to be imposed should be adjusted in accordance with the following aggravating criteria, established in art. 40 of the LSSI: - The existence of intentionality, an expression that must be interpreted as equivalent to degree of guilt according to the Judgment of the National Court of 11/12/07 relapse in Appeal no. 351/2006, corresponding to the entity denounced the determination of a system of obtaining the informed consent that conforms to the mandate of the LSSI. C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 6/10 Based on these criteria, it is deemed appropriate to impose on the claimed entity a penalty of 3,000 euros (three thousand euros), for the violation of article 21 of the LSSI, regarding the sending of commercial communications through email without the consent of the affected party. In light of the foregoing, by the Director of the Spanish Agency for Data Protection HE REMEMBERS: START: SANCTIONING PROCEDURE for the NATURAL LOGISTICS entity, S.L. with CIF B84147065, for violation of article 21 of the LSSI, for sending commercial communications, via email, without the consent of the interested party. APPOINT: As Instructor to B.B.B., and Secretary to C.C.C. , if applicable, to, indicating that any of them may be challenged, where appropriate, in accordance with the provisions of Articles 23 and 24 of Law 40/2015, of October 1, on the Legal Regime of the Sector Public (LRJSP). INCORPORATE: To the sanctioning file, for evidentiary purposes, the claim filed by the claimant and his documentation, all of them part of this Administrative file. WHAT: For the purposes provided for in art. 64.2 b) of Law 39/2015, of October 1, on Common Administrative Procedure of Public Administrations, the sanction that could correspond it would be 3,000, (one thousand five hundred euros). NOTIFY: The present agreement to initiate the sanctioning file to the entity, NATURAL LOGISTICS, S.L. with CIF B84147065 granting a hearing period ten business days to formulate the allegations and present the evidence that consider convenient. If within the stipulated period it does not make allegations to this initiation agreement, the same may be considered a resolution proposal, as established in article 64.2.f) of Law 39/2015, of October 1, on the Common Administrative Procedure of the Public Administrations (hereinafter, LPACAP). C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 7/10 In accordance with the provisions of article 85 of the LPACAP, in the event that the penalty to be imposed would be a fine, you may recognize your responsibility within the term granted for the formulation of allegations to the present initiation agreement; it which will entail a reduction of 20% of the penalty to be imposed in the present procedure, equivalent in this case to 600 euros. With the application of this reduction, the penalty would be set at 2,400 euros, resolving the procedure with the imposition of this sanction. In the same way, you may, at any time prior to the resolution of this procedure, carry out the voluntary payment of the proposed sanction, which will mean a reduction of 20% of the amount thereof, equivalent in this case to 600 euros. With the application of this reduction, the sanction would be established in 2,400 euros and its payment will imply the termination of the procedure. The reduction for the voluntary payment of the penalty is cumulative to the corresponding apply for the acknowledgment of responsibility, provided that this acknowledgment of the responsibility is made manifest within the period granted to formulate allegations at the opening of the procedure. The voluntary payment of the referred amount in the preceding paragraph, it may be done at any time prior to the resolution. On In this case, if both reductions should be applied, the amount of the penalty would be set at 1,800 euros (nine hundred euros). In any case, the effectiveness of either of the two mentioned reductions will be conditioned to the withdrawal or resignation of any action or remedy in administrative against the sanction. If you choose to proceed to the voluntary payment of any of the amounts indicated previously, you must make it effective by entering account number ES00 0000 0000 0000 0000 opened in the name of the Spanish Agency for the Protection of Data in Banco CAIXABANK, S.A., indicating in the concept the number of reference to the procedure in the heading of this document and the cause of reduction of the amount to which it is accepted. Likewise, you must send the Proof of admission to the Subdirectorate General of Inspection to continue with the procedure in accordance with the amount entered. C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 8/10 The procedure will have a maximum duration of nine months from the date of date of the initiation agreement or, where appropriate, the draft initiation agreement. After this period, its expiration will occur and, consequently, the file of performances; in accordance with the provisions of article 64 of the LOPDGDD. Finally, it is pointed out that in accordance with the provisions of article 112.1 of the LPACAP, There is no administrative appeal against this act. Mar Spain Martí Director of the Spanish Agency for Data Protection. >> SECOND: On August 12, 2021, the claimed party has made the payment of the sanction in the amount of 1,800 euros making use of the two reductions provided for in the Initiation Agreement transcribed above, which implies the acknowledgment of responsibility. THIRD: The payment made, within the period granted to formulate allegations to the opening of the procedure, entails the waiver of any action or appeal in the process administrative against the sanction and the recognition of responsibility in relation to the facts to which the Initiation Agreement refers. FOUNDATIONS OF LAW I By virtue of the powers that article 58.2 of the RGPD recognizes to each authority of control, and as established in art. 47 of Organic Law 3/2018, of 5 of December, Protection of Personal Data and guarantee of digital rights (in hereinafter LOPDGDD), the Director of the Spanish Agency for Data Protection is competent to sanction the infractions that are committed against said Regulation; infractions of article 48 of Law 9/2014, of May 9, General of Telecommunications (hereinafter LGT), in accordance with the provisions of the article 84.3 of the LGT, and the offenses typified in articles 38.3 c), d) and i) and 38.4 d), g) and h) of Law 34/2002, of July 11, on services of the company of the information and electronic commerce (hereinafter LSSI), as provided in article 43.1 of said Law. C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 9/10 II Article 85 of Law 39/2015, of October 1, on Administrative Procedure Common of Public Administrations (hereinafter, LPACAP), under the rubric "Termination of sanctioning procedures" provides the following: "1. Initiated a sanctioning procedure, if the offender acknowledges his responsibility, the procedure may be resolved with the imposition of the appropriate sanction. 2. When the sanction is solely of a pecuniary nature or it is possible to impose a pecuniary sanction and other non-pecuniary sanction but the inadmissibility of the second, the voluntary payment by the presumed responsible, in any time prior to the resolution, will imply the termination of the procedure, except in relation to the replacement of the altered situation or to the determination of the compensation for damages caused by the commission of the offense. 3. In both cases, when the sanction is solely of a pecuniary nature, the competent body to resolve the procedure will apply reductions of, at least, 20% on the amount of the proposed sanction, these being cumulative among themselves. The aforementioned reductions must be determined in the notice of initiation of the procedure and its effectiveness will be conditional on the withdrawal or resignation of any action or appeal in administrative proceedings against the sanction. The percentage of reduction foreseen in this section may be increased regulations. " In accordance with the above, the Director of the Spanish Agency for the Protection of Data RESOLVES: FIRST: DECLARE the termination of procedure PS / 00263/2021, of in accordance with the provisions of article 85 of the LPACAP. SECOND: NOTIFY this resolution to NATURAL LOGISTICS, S.L .. In accordance with the provisions of article 50 of the LOPDGDD, this Resolution will be made public once it has been notified to the interested parties. Against this resolution, which puts an end to the administrative procedure as prescribed by the art. 114.1.c) of Law 39/2015, of October 1, on Administrative Procedure Common of Public Administrations, interested parties may file an appeal administrative litigation before the Contentious-Administrative Chamber of the National High 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 notification of this act, as provided in article 46.1 of the referred Law. C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 10/10 936-160721 Mar Spain Martí Director of the Spanish Agency for Data Protection C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es