AEPD - Nº: PS/00142/2020
|AEPD - Nº: PS/00142/2020|
Article 7 of the Directive 2000/31/EC of the European Parliament and the Council
21.1 LSSI Spanish Law on Information Society Services and Electronic Commerce
Article 85 LPACAP Spanish Law on Common Administrative Procedure of Public Administrations
|National Case Number/Name:||Nº: PS/00142/2020|
|European Case Law Identifier:||n/a|
|Original Source:||aepd.es (in ES)|
|Initial Contributor:||Pablo Rossi|
The AEPD decided to fine the entity BUBO MEDIA S.L in the amount of EUR 1500 for the unsolicited sending of commercial communications by SMS, prohibited by article 21.1 of the LSSI (Spanish Law on Information Society Services and Electronic Commerce, which transposes into Spanish law the Directive 2000/31/EC on electronic commerce). However, the entity made use of two attenuating factors from the LPACAP (Spanish Law on Common Administrative Procedure of Public Administrations). This led to a reduction of up to EUR 600 in the amount of the penalty, setting the total amount of the fine in EUR 900.
English Summary[edit | edit source]
Facts[edit | edit source]
On 13/11/19 the AEPD received a written submission from the complainant in which it was stated the following: I periodically receive SMS messages on [my phone] from some service to which I have not subscribed, nor have I consented to any use of my data and it is also impossible to communicate my cancellation. The messages in dispute are attached to the written submission.
In view of these facts, the Subdirectorate General for Data Inspection proceeded to carry out actions for their clarification. The entity AIRE NETWORKS DEL MEDITERRÁNEO and the entity DIGITAL VIRGO ESPAÑA, S.A were contacted so that they could indicate the identification data and the ownership of the telephone lines from which the messages had been sent. DIGITAL VIRGO ESPAÑA, S.A sent written response, establishing that the owner of the line under investigation was BUBO MEDIA, S.L. by virtue of a contract for the provision of telecommunications services.
On 17/04/20, the entity BUBO MEDIA, S.L. sent to AEPD an e-mail indicating that the way that their customers know about their products and services is through a website and that the way that their costumers request their services is through a phone number. They also stated that the contracting of the services is not accompanied by a written contract and that the conditions of the service and the purposes of the use of the data are indicated in the aforementioned website. As regards for the provision of consent and the contractual relationship, they stated that the costumers are also aware of the contract conditions by the website and that the fact that the customer contacts them by making a phone call to show interest in their services constitutes a clear affirmative act. They made also reference to the fact that they consider that the provision of their consultancy services includes appropriate interaction with the user and that they have recently included the option to unsubscribe from commercial communications by means of a link that appears in the first confirmation sent to costumers.
Dispute[edit | edit source]
Can BUBO MEDIA’S actions be regarded as unsolicited sending of commercial communications by SMS, without the offering of a mechanism to oppose the processing of personal for marketing purposes, prohibited by article 21.1 of the LSSI?
In this case, there was no dispute. BUBO MEDIA acknowledged that their actions were not in line with article 21.1 LSSI, recognized their responsibility and paid the fine in advance, thus mitigating the amount to be paid for such infringement.
Holding[edit | edit source]
Firstly the AEPD decided to initiate a sanctioning procedure against the entity BUBO MEDIA, S.L. for the alleged infringement of Article 21.1 of the LSSI, typified as minor infringement in Article 38(4) (d). The fine associated with this infringement is calculated in EUR 1500. However, two attenuating circumstances of the Spanish Law on Common Administrative Procedure of Public Administrations (Article 85) can be applied, which may respectively reduce the fine by 20%. The first mitigating factor is to acknowledge their responsibility within the time allowed for the submission of claims. The second mitigating factor is, at any time prior to the resolution of the proceedings, to make voluntary payment of the proposed penalty.
On June 9, 2020, BUBO MEDIA, S.L. proceeded to pay the sanction in the amount of EUR 900, applying therefore the two previously mentioned reductions. This implied the recognition of their responsibility and the resignation to any action or appeal in administrative channels against the sanction. After these events, the AEPD decided to terminate the procedure.
Comment[edit | edit source]
Despite the fact that the Directive 2000/31/EC on electronic commerce has been introduced into the legal systems of the Member States in a harmonized manner, each Member State has its own administrative sanctioning procedures. This underlines the importance of knowing the administrative sanctioning procedures of each Member State, where small particularities can mean big differences from one State to another.
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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.