| AEPD - PS/00430/2018 | |
|---|---|
 | |
| Authority: | AEPD (Spain) |
| Jurisdiction: | Spain |
| Relevant Law: | Article 4(7) GDPR Article 6(1)(f) GDPR |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | |
| Decided: | n/a |
| Published: | 14. 2. 2020 |
| Fine: | n/a n/a |
| Parties: | A.A.A. B.B.B. City Council of Ribadedeva |
| National Case Number/Name: | PS/00430/2018 |
| 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 (AEPD) held that a mayor was the controller for personal data shared on their personal Facebook page, and not the City Council, because the former decided on the purposes and means alone.
English Summary
Facts
The data subject was party to a workplace harassment suit against the mayor and lodged a complaint with the Spanish DPA (AEPD) after the mayor posted the unredacted court decision on his personal Facebook page, in combination with other personal data concerning the data subject.
The mayor claimed the posting of the data subject’s personal data was covered by Article 6(1)(f) as a legal basis.
In their investigation, the DPA assessed whether the City Council was a controller or joint-controller for the data, and thus could be party to the complaint.
Holding
In its decision, the DPA highlighted that the City Council was the owner of the files containing personal data related to development of labour relations. However, the DPA emphasized that a distinction must be made between the processing carried out by the City Council and the individuals who act on their instructions, and individuals who belongs to the City Council but act independently.
With that in mind, the DPA concluded that the City Council did not determine the purposes and means of the processing of personal data on the mayor's Facebook page. As such, the DPA declared that the City Council was not responsible for the alleged infringement of Article 6(1)(f).
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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.
Procedure Nº: PS / 00430/2018 938-051119 RESOLUTION OF SANCTIONING PROCEDURE The procedure instructed by the Spanish Agency for Data Protection (AEPD) and based on the following BACKGROUND FIRST: AAA (hereinafter, the claimant) dated 09/19/2018 filed a claim before the AEPD against BBB, *** POSITION. 1 RIBADEDEVA (PINCIPADO DE ASTURIAS) (in forward, the claimed). The grounds on which the claim is based are that the claimant He served in the City Council of RIBADEDEVA and, as such, engaged a social action lawsuit against the City Council and *** POSITION.1 as part co-commanded He states that “ the claimant has set out the *** DATE.1 on his page of FACEBOOK the sentence integrates with all the data and other circumstances being able access it any person. " Provides a copy of the complaint before the Civil Guard of *** DATE. 2 indicating that the ruling of the Social Court number *** NUMBER 1 of Oviedo of *** DATE.3 , is is in the social network of FACEBOOK by BBB , *** current POSITION of RIBADEDEVA Provides printing of the FACEBOOK page of the respondent, where its name and surname and photo, without mentioning the City Hall, which highlights some Comments with the title IMPORTANT OFFICIAL COMMUNICATE . Although it is not read properly, the complete reference to the name of the claimant and the claim filed against the City Council and the and that they have been acquitted, and that accompanies the sentence “ where the plaintiffs ' lies ” are evident ”and Attached, the complete sentence. The writing is signed by BBB with the addition of *** POSITION 1 of the Ribadedeva City Council and comments on the information. In the sentence, the Claimant is plaintiff against City Hall and D. BBB as defendant. SECOND: In view of the facts and documents provided by the claimant, at claimed, address of the City Council, a copy of the claim is sent through the AEPD, to send: one. Copy of the communications and of the decision taken that you have submitted to the complaint maintain about the transfer of this claim. two. Report on the causes that have caused the incident that caused the complaint mation 3. Report on the measures taken to avoid similar occurrences lares With date *** DATE. 4 , he states in his response the TOWN HALL signed by *** POSITION. 1 , BBB , the claimed, indicating: 1) The claimant provides services for the City Council and has filed a lawsuit in the Social Court requesting the termination of their employment contract derived from Article 50 of the Workers' Statute, due to workplace harassment , and breach repeated foundations of the City Council, requesting compensation of € 50,000 for moral damages. The content of the sentence reveals the vicissitudes in the relations Claimants' relationships with a partner and other personal circumstances of the re- claimant in the provision of services such as transfer to another plant and reallocation tion of tasks among employees. The defendant states that the day after the sentence being notified, *** DATE.1 , the claimant on his FACEBOOK wall published a message that provides a copy in which it begins "it is sad to have to come to trial so that two days before it, the defendant does what he had than having done five months before, which has largely motivated the Manda be dismissed. I already knew when I filed the lawsuit the difficulty of accredit a situation of harassment at work in a public administration but if I had not gone to court, this matter would be involved in an unresolved drawer, and my personal and professional dignity questioned in writing, what that in any way can admit ... It has been clarified that my behavior as an employee and co-worker it has been correct. ” Thanks neighborhood support and ends indicating that it will be presented to the next elections. Before said comments, the respondent states: to. He stated the sentence before the claimant's intention to misrepresent the content do and failure of the same that was unfavorable. In the same social network FACEBOOK made a statement in which it began za indicating that “ a person linked to the City Council is trying to manipulate with falsehoods and half truths to local public opinion in relation to an issue labor. Said person filed a labor lawsuit against the City Council and against my person on 06/22 ”, refers the name and surnames, which are contained in the fa- llo of the sentence, and points out that for being illustrative and “ to prove the facts more that the malicious demonstrations without any evidence ” “ I accompany in this message the integral sentence ”for understanding that it indicates that there is no indication some of professional damage or attack on their dignity. Along with those comments are view the exposed sentence, which provides full copy. It states that there is legitimacy for it derived from the article 6.1. c) and 6.1.e) and at individual level 6.1.f) of the GDPR for the serious accusations that poured into his demand and 69 and 70 bis 3 of the LBRL. b. He adds that the publicity of personal data itself as the situation The claimant's oral and health have been disclosed by the claimant himself to many neighbors of the Council considering that it discards the possible illicitness of the treatment The subject of the claim. c. In addition, there was a clear public interest as shown by the fact that sat citizen signatures in support or in the interests of the claimant (it contributes pious of them). 2) From the reading of the judgment of *** DATE. 3 , it is clear among other elements: - Lawsuit is filed against the City Council and D. BBB as defendant, in the sentence they also refer to this as mayor. - In proven facts, a co-worker of the complainant and details the situation of conflict and tension between the two, the harassment and harassment that the employee says she suffers and the request for measures to solve the situation that the claimant made to the City Council. They relate the actions of the mayor gathering before complaints to both employees, the reallocation of tasks and the transfer to the second floor of the plaintiff, And the interviews. The status of the complainant in an IT situation is mentioned since 03/23/2018 “ due to anxiety disorder, which continues ”. Is contained the agreement of *** POSITION 1 of *** DATE. 5 of reallocation of tasks. - On the basis of law, the judge refers that the plaintiff pre Tends to terminate the contract based on workplace harassment . Enter to assess Cha question. - On the basis of law it is indicated that “ there is no appreciation of existence of any indication determining any situation of harassment, persecution degradation or attack on the personal and labor dignity of the plaintiff ”” or “ The Mayor here sued as the author of the persecution that the plaintiff denounces, after the briefs submitted by the parties on 25 and 30/01 met with them ... it is indicated that the mayor intended was to try solve the confrontation ”. The demand is dismissed. 3) Provides a copy of the letter delivered to the claimant on 11/22/2018 in which details explanations of the reasons why the sentence is dismissed by dismissing the petition tion made before the AEPD. THIRD: On 11/29/2018, the claim is admitted for processing. FOURTH: On 05/22/2019, the claimant's letter is received requesting to know the situation of the file. In writing of 06/25/2019, you are informed that the PS / 00430/2018 of warning against CITY COUNCIL OF RIBADEDEVA ( *** POSITION 1 ) and its maximum duration. You are told that at the time the decision is issued solution that ends the procedure, a new communication will be sent to you forming the publication of said resolution on the Agency's website. FIFTH: On 05/27/2019, the director of the AEPD agreed: one. START SANCTIONING PROCEDURE at the CITY COUNCIL OF RIBADEDEVA (Mayor) for the alleged violation of article 6.1.f) typified in the Article 83.5 a) of the GDPR. two. ORDER TO THE CITY COUNCIL OF RIBADEDEVA ( *** POSITION 1 ) according with the provisions of article 58.2 d) of the GDPR, so that you can withdraw the copy of the sentence Exposed from the FACEBOOK page of *** POSITION. 1 CITY COUNCIL OF RIBADEDEVA. SIXTH: BBB , stating as *** POSITION 1 of RIBADEDEVA presents allegations on 06/12/2019 stating: a) The copy of the sentence was removed from the FACEBOOK page on 06/06/2019 upon receipt The starting agreement. b) Reiterates the argument that it presented the integral judgment so that the public opinion Know the circumstances and limit the previous manifestation of the claimant in FACEBOOK indicating that two days before the trial the defendant had made something I should have done before, with no aspect of that statement in the sentence. Reiterates that transparency and the right to inform the neighbors concur with the publication in said page of FACEBOOK. c) Reiterates several criteria of legality in the treatment, articles 6.1. c), e) and f) of the GDPR which links with article 69 of Law 7/1985 of 2/04 of the rules of the local regime, also referring to the law 19/2013 of 9/12, of Transparency and Access to the public information (LT) article 5. d) Add that the legitimate interest of the Mayor is higher by more qualified because responds to the claims made by the claimant in the social network on 09/12/2018, that was trying to misrepresent the fault they needed from the comprehensive exposition of the judgment and its proven facts. The legitimate interest is based on the protection of your right to honor and to the image itself for the accusations made against him. SEVENTH: On 06/27/2019 the claimant submits a letter indicating that it has been opened initial agreement against the City Council, when its complaint was addressed to the natural person which holds the City Hall of said city council, which publishes in its own profile of FACEBOOK, profile that lacks any reference to the City Council. Manifest request the revision of the agreement and its correction. Provides a copy of a screen print, date *** DATE. 6 on which the web is viewed City Hall, and a link to a BBB FACEBOOK page , although it indicates that Now it doesn't work. The photo that matches the profile on the BBB page can be seen In FACEBOOK that this brings in this or the claimant contributed to this procedure. It also accompanies the FACEBOOK profile printout of the personal account of BBB , stating that “ at no time does it refer to the fact of being *** POSITION. 1 Ribadedeva in your profile information . " Claimant's new brief of 08/05/2019 for the complaint to be considered It was against BBB , not the City Council nor as *** POSITION . 1 . Provide a writing in which distinguishes two ways to appear on FACEBOOK; a profile and a page of FACEBOOK, being a profile a personal account, “ which is used for a non-commercial purpose and Represents individuals. The first time you sign up for Facebook, you are granted a profile. Your profile is where to add friends and family and share personal photos, videos and updates of your life . ” ” While all updates are public, only People who have added you as a friend can see your content. Users who do not be your friends will be able to access the public publications of your profile, but they will not be able to see nothing you've shared especially with friends or custom groups . ” “ On the other hand, a Facebook page is a business account that represents a company, an organization, a public figure, etc. It is similar to a profile of Facebook, but offers unique tools to manage and monitor the interaction and participation . ” “ While you can only have a single Facebook Profile related to your name, you can have an unlimited number of Pages associated with your account. Unlike the Profiles, several people can manage and contribute to a Page using their own Facebook startup information. “The pages are great for generating followers online because they are not limited to the number of friend requests. Instead, users just have to click on the Like button to start receiving updates . ” EIGHTH: On 11/28/2019 a resolution is issued with the literal: “ That the Director of the Spanish Agency for Data Protection be sanctioned with APPROVAL TO THE CITY COUNCIL OF RIBADEDEVA ( *** POSITION 1) for an infraction of Article 6.1.f) of the GDPR, in accordance with Article 83.5 of the GDPR ”. In the face of it, no allegations have been received. PROVEN FACTS 1) The claimant, administrative assistant labor employee of the City Council of RIBADEDEVA filed on 06/25/2018 lawsuit before the Social Court against D. BBB and the RIBADEDEVA City Council requesting the termination of the employment relationship by violation of their rights and compensation of 50 thousand euros for damages. The lawsuit ended with judgment of *** DATE . 3 . The sentence refers to D. BBB as *** POSITION 1 , chief of staff and its dictated resolutions. The lawsuit “ dismisses the one filed by the claimant, absolving the defendants of the claims deducted against him ”. 2) The judgment assesses the alleged labor harassment by the claimant, the bad ones relationships with a claimant's partner, who is identified with names and Surname, written by her before *** POSITION.1 referring to the working environment with the claimant, the claimant's plant change as a result of a meeting of *** POSITION 1 with the parties on 02/02/2018. The sentence determines that it is not appreciated existence of any indication that determines any situation of harassment, persecution, degradation or attack on the personal and labor dignity of the plaintiff " Al *** POSITION. 1 , here sued as the author of the persecution that the plaintiff denounces ... met with them ... and that the plaintiff stated that he did not want to be on the ground floor, therefore it is not explained what kind of reprisal is that when you are accessing what your own actor requested “ there is not the slightest indication that there has been a conduct of *** POSITION 1 aimed at prosecuting or harming the plaintiff, rather the opposite . ” In the ninth proven fact it is indicated that the plaintiff “ passed to the IT situation by anxie disorder d the 23/03/2018, in which continuous ". 3) The claimant exhibited on his FACEBOOK page, associated with his name and surname a message on *** DATE 1 at 18:21 indicated “ Today is a great day” in which he states that “It is sad to get to trial so that two days before the defendant does what he had to having done 5 months before, which has largely motivated the demand to be dismissed ”, without explaining what he means, he continues to indicate that“ he knew that when he filed the lawsuit, it would be difficult for him to prove the harassment at work ”, which“ is clarified that your behavior as an employee and co-worker has been correct ”, that "He has been working as a public employee for 18 months ," thanks the neighborhood support received and announces that it will enter politics ”. 4) After seeing BBB, Mayor of RIBADEDEVA, the claimant's announcement on FACEBOOK, in the same social network FACEBOOK, on a page with the name BBB, without any reference to the City Council , presented a written response entitled " COMMUNICATED OFFICIAL ”noting that“ some people linked to the City Council are trying to manipulate local public opinion with falsehoods and half-truths in relation to a labor issue that should never have left the town hall walls ”. It indicates that said person filed his claim on 06/22/2018 against him and the City Hall, accusing him of workplace harassment and asking for compensation. Quote the literal of the ruling with the name of the claimant. He says that in the face of demonstrations malicious, exposes the integral sentence . Add to your writing with your name and Surname, the position of *** POSITION . 1 Ribadedeva. 5) The claimant who removed the sentence during the processing of this procedure, upon receiving the start agreement. RIGHTS OF LAW I Under the powers that Article 58.2 of the GDPR recognizes each authority of control, and as established in arts. 47 and 48.1 of the LOPDGDD, the Director of the Spanish Agency for Data Protection is competent to resolve this procedure. II To analyze the infringement charged, we start from the principle of publicity of the judicial proceedings, constitutionalized by art. 120.1 CE, and to which reference is made in different precepts of the Organic Law of the Judiciary (articles 232, 234, 235 and 266.1). Article 232 LOPJ states " 1 The judicial proceedings shall be public, with the exceptions established by the laws of procedure. 2. Exceptionally, for reasons of public order and protection of rights and liberties, Judges and Courts, may by reasoned resolution limit the scope of advertising and agree on the secret nature of all or part of the actions ". Article 234 LOPJ prescribes " The Secretaries and competent personnel of the Courts and Tribunals will provide interested parties how much information they request about the status of legal proceedings, which they may examine and know, unless they are or would have been declared secret according to the law. In the same cases, the testimonies requested, with the expression of the addressee, except in cases where the law provide otherwise . " Article 235 LOPJ refers to access by interested parties to books, files and judicial records that are not reserved and article 266 indicates that will allow any interested party access to the sentence text. The STS of March 3, 1995, appeal 1218/1991, states in relation to the publicity of judicial proceedings ".. that the right and correlative duty of knowledge and access to the text of court decisions is graduated based on three various areas or spheres of involvement, each governed by various criteria, namely: a) one of maximum amplitude or generalized affectation, which includes the public or citizens in general, without specific qualification and that corresponds to the publicity of the judicial proceedings developed in all kinds of processes, which allows those go to the practice of errands that must take place "at a public hearing", except for the Reservation statement that the court organizes by reason, principle of constitutionalized advertising in art. 120.1 of the Fundamental Standard and which includes art. 232.1 of the Organic Law. b) at the opposite extreme, of maximum restriction of the scope of knowledge of the judicial decisions, are the acts of notification and communication of these, directed only to those who have the status of procedural part under the laws of procedure, and that as regards the sentences determine the right and correlative duty of the Judges and Courts to their knowledge through the instrumental act of notification, as prescribed by art. 270 LOPJ. c) occupying an intermediate position that places the issue in a more imprecise scope, find the procedural actions already completed, including sentences, integrated into books, archives or judicial records, and in respect of which, on the one hand, art. 235 LOPJ determines that: «the interested parties will have access to the books, archives and judicial records that are not reserved, through the forms of exhibition, testimony or certification established by law » Regarding the quality of the interested party for the purposes described, it is specified in the said judgment that " the legitimate interest that is enforceable in the case, can only be recognized in whom, natural or legal person, manifests and accredits, at least prima facie, before the judicial body, a connection of concrete and singular character well with the object of the process and, therefore, of the sentence that ended it in the instance, either with any of the procedural acts through which it has been developed and which are documented in autos, connection that, on the other hand, is subject to two conditions: a) that does not affects fundamental rights of the procedural parties or of those who in some way have intervened in the process, to essentially safeguard the right to personal and family privacy and intimacy, honor and the right to self image that it could eventually affect those people; and b) that if the information is used, as a mediating activity, to satisfy the rights or interests of third parties, and in consequence acquires, as is the case, an aspect of globality or generality by relationship not to a specific process, such interest remains within the scope of the legal system and its applicators, in general, as otherwise it would be as well as making the judicial body participant or collaborator in tasks or activities that, by very lawful they may be, they undermine their jurisdictional function » .." The doctrine established in said judgment has been reiterated in the SSTS of 22 of May 1996 and April 6, 2001, resource 9448/1996. Also the SAN (1st) of November 29, 2001, resource 531/2000 echoes the doctrine set by the aforementioned STS of March 3, 1995, and states that " the data contained in books and judicial records they are not publicly available entirely free and indiscriminate since access to them is regulated and in certain restricted measure. On the one hand, by the appeal made by the aforementioned articles 235 and 2666.1 of the Organic Law of the Judiciary on the condition of "interested", of whose significance and scope we already know the jurisprudential interpretation. On the other hand, because access to such books and files is mediated by the necessary intervention of the Judicial Secretary and the mandatory subject to the application process and authorization regulated in Articles 1 to 5 of Regulation 5/1995, of June 7, of the General Council of Power Judicial, on accessory aspects of judicial proceedings . " That is, and for what we are interested in here, the publicity of the judicial proceedings does not means that the data contained in a judicial proceeding that is in the phase of execution, can be examined and are available to the general public of totally free and indiscriminate, but that advertising is restricted except those actions held in public hearing to those who hold the condition of "interested parties", to which article 234 LOPJ appeals. This concept of interested, not it necessarily coincides with that of the procedural part and which has been outlined by the jurisprudence in the sense described above. To finish with the examination of jurisprudence and regulations on this matter It should be noted that the jurisprudential criteria set forth is consistent with the position maintained by the Civil Chamber of the Supreme Court when weighting the publicity of the sen- you had the right to honor, establishing in your judgment of December 22, 2008 the next: “The publicity of judgments constitutes an instrument of guarantee of independence. decision of the courts and their performance according to law, as these principles are reinforced by knowledge of the actions of the courts by citizens, and should be considered closely linked to the protection of fundamental rights inherent in the exercise of jurisdictional power by judges and courts. This advertising can only be restricted or limited, as established in the law, when it may entail the impairment of a fundamental right of citizens give us affected or a constitutionally protected good, especially when the knowledge of the private data contained in the judgment may lead to the disclosure of aspects of privacy that should be protected, provided that This disclosure is not protected by the right to information within the framework of the Free public munication proper to a democratic society. In effect, according to STC 57/2004, of April 19, FJ 5 (in the same sense, pecto of the publication of the sentences of the Constitutional Court, ATC 516/2004, of 20 December, FJ 1, and STC 114/2006, FJ 7), the principles of weighting and proportional- can lead to the conclusion that other fundamental rights or property with Constitutional protection must take precedence over the publicity of judgments Cial This principle is applied by article 266.1 II LOPJ, introduced by LO 19/2003, of December 23, according to which «[e] l access to the text of the sentences, or from finished ends thereof, may be restricted when it could affect the right to privacy, the rights of people who require a special duty of guardianship or the guarantee of anonymity of the victims or injured parties, when appropriate it gives, as well as, in general, to prevent sentences from being used with nes contrary to the laws. When the publication of a judicial resolution may affect the honor of the person na that has obtained an unfavorable result in the process, it is necessary to determine whether The exception that the LPDH establishes in the sense of considering non-existent the violation ration of the scope protected by this right when it is the product of the exercise of a right recognized by the legal system (art. 2.2 LPDH: «The existence of illegitimate interference in the protected area when expressly authorized by law"). The contrast between the right to honor and the right to publicize the content of the judgment, which results from the principle of publicity, should result in a weighting in the that the fulfillment of the institutional purposes that the Advertising principle pursues. This aspect, in turn, requires taking into account the ma in which the publication has been produced, taking into account whether it is a communication neutral citation of the content of the sentence or if elements that are sus- tained are added or subtracted likely to distort the objective knowledge of the court's decision to convert the publication of the judgment in a procedure suitable to undermine the honor of the person concerned tada, beyond what objectively implies in the field of reputation the failure of an action or opposition held before the courts of justice. Well, it is clear that the principle of publicity of sentences that contain templa our LOPJ is not absolute, but finds limits, either by referring to who hold the status of interested parties or because of the prevalence of other rights or goods that enjoy constitutional protection, as with the right to protection of data, the latter issue that has been examined in the foundation of previous law. Finally, it should be noted that the constitutional doctrine contained in the STC 114/2006, of April 5, only confirms what has been exposed so far, because in it the Tri- Constitutional bunal is limited to extract from a joint reading of articles 120 and 164.1 EC and Articles 86.2 and 99.2 LOTC - in its wording prior to the reform operated by the Organic Law 6/2007, of May 24-, placed in relation to Articles 9.1 CE and 5.1 LOPJ, a constitutional requirement for maximum dissemination and publicity of the full content of the jurisdictional resolutions of that Court that incorporate constitutional doctrine, which it is specified, on the one hand, in the formal obligation to publish such resolutions in the Official Gazette, and in a material obligation to give greater accessibility and public dissemination to their content, regardless of their nature and the process in which they dictate and, on the other, in that the publicity and diffusion has to affect the entire resolution. It is significant that for this the Constitutional Court is especially supported in art. 164.1 CE establishes, which preaches it establishes, beyond even the principle general publicity of judicial proceedings and their resolutions of art. 120 CE, one specific constitutional requirement for maximum dissemination and publicity of legal resolutions of this Court. Moreover, it highlights the nuances that differentiate the principle of publicity from sentences. Cias of the Constitutional Court of the judgments of the Judiciary, by limiting the Applicability to that of the regime established in this regard by the LOPJ, stating the following: “Being evident that the possibility itself, foreseen in art. 266.1 LOPJ, to restrict total- mind the access to the text of a Judgment could be problematic, as far as to the Constitutional Judgments, thanks to the obligation of their formal publication in the Bo- Official Latvian, provided for in both art. 164.1 CE as in art. 86.2 LOTC, and that, even, the The possibility of omitting the identification of the parties involved in the process may result tar, usually, much more exceptional in constitutional processes than in pro judicial dismissals, thanks to the material obligation, derived from the arts. 164.1 CE and 99.2 LOTC, to ensure maximum dissemination of the jurisdictional resolutions of this Tax- nal; the art. 266.1 LOPJ in conjunction with the aforementioned art. 6.4 LOPD, in any case, can serve of reference element both in establishing the need for the decision on the restriction of the publicity of the parties involved in the constitutional process it is done by making an individual weighting of the constitutional interests concu- managers in the case with which the advertising principle may conflict, as in Regarding what are the interests that may be prevalent, singularly the right to privacy, the rights of those who require a special guardianship, the guarantee of anonymity, where appropriate, of victims and victims, and the avoidance of said data being used for purposes contrary to the Laws. Throughout In this case, special emphasis should be made that the literal wording of art. 266.1 LOPJ does not imply a limitation of the fundamental rights and constitutional guarantees with which they can the constitutional principle of maximum diffusion of the re- jurisdictional solutions of the Constitutional Court, whenever any right damental or constitutional guarantee is likely to be weighted with respect to the possibility It is possible to make exceptions to that principle, including, of course, the fundamental right as provided in art. 18.4 CE in the terms and with the breadth and autonomy that has been recognized by this Court in STC 292/2000, of November 30, in its foundations legal coughs 5 and 6 ”. Therefore, again this doctrine redirects the controversial issue to the interest weighting. The claims of the defendant, although it can be understood in an accusing tone, they do not suggest a response outside the law by presenting the sentence on the social network integra, treatment not legitimized according to the regulations in force in the circumstances given. III Article 4.2, .7 and .10 of the GDPR states: “ For the purposes of this Regulation, understand by: 2) treatment »: any operation or set of operations performed on data personal or personal data sets, either by automated procedures or no, such as collection, registration, organization, structuring, conservation, adaptation or modification, extraction, consultation, use, communication by transmission, dissemination or any other means of enabling access, collation or interconnection, limitation, suppression or destruction; 7) "responsible for the treatment" or "responsible": the natural or legal person, authority, service or other body that, alone or together with others, determines the purposes and means of treatment; Whether the law of the Union or of the Member States determines the purposes and means of the treatment, the person responsible for the treatment or the criteria specific for their appointment may be established by the law of the Union or of the Member states; 10) "third party" means a natural or legal person, authority, service or body other than interested, the person in charge of the treatment, the person in charge of the treatment and the persons authorized to process personal data under the direct authority of the responsible or manager ; ” The making available through the FACEBOOK platform of the inter- gra containing personal data of the claimant, a partner of this and the Circumstances surrounding the case, visible to anyone, to third parties, imply call to the CITY COUNCIL of RIBADEDEVA for a violation of article 6. 1, f) of the GDPR for data processing through an automated means, which through the Social network allows you to add or upload documents, such as the sentence. It is observed that without the intermediation of the social network platform there would be no Access and knowledge of the data contained in the sentence were possible. The Town Hall ment is the owner of files that contain personal data among others Swim with the development of labor relations. However, in this case, it does not appear that the City Council had intervened in in any way in the setting of means or ends of the treatment nor can it be said that *** TO.1 will officially act as spokesperson or person in charge of the treatment of that one but that *** POSITION. 1 as the holder of the judgment document, in a private medium as it was his FACEBOOK page fully presented the sentence. Even if I did it to answer der to the claims of the claimant, who did not expressly mention the name of *** POSITION 1 , was displayed on the BBB website, and not on the City Council. They have of differentiating therefore the treatments carried out by the City Council and the physical persons cas that act within their bosom according to the instructions given, of which they still belong denying their structure they deal with them regardless of the instructions given or in own benefit. Although in the page of FACEBOOK in which the sentence was exposed, indicated its condition of *** POSITION.1 , it is characteristic of *** POSITION.1 , not as such condition, but on a private basis. In this case, the responsibility for the use of it is of said per- sound physical as responsible for the treatment, not the City Council. Article 28 of Law 40/2015, of 1/10, on the legal regime of the public sector is tablece: “1 . They may only be sanctioned for acts constituting an administrative infraction. natural and legal persons, as well as, when a Law recognizes their ability to act, affected groups, unions and entities without legal personality and independent or autonomous assets that are responsible for them in title of fraud or guilt . ” The conduct that consists in making reference, in a social network, created web page and powered by BBB , personal data should be considered as data processing, which In accordance with the technical and computer procedures they imply performing the operations ne- required to make its content accessible to people who are connected to In- ternet, through the FACEBOOK platform, these operations being carried out Automated The principles of the field of criminal law applicable, with certain nuances, in the administrative penalty area, and in accordance with the proven facts, having been more admitted by BBB that exposed the sentence in defense of attacks The claimant's statements were not possible, it is not possible to charge the infraction to the City Council and declare that he has committed it. Since the facts that gave rise to the claim occur on *** DATE 1 and by their severity, they are not prescribed, so we will proceed to initiate proceedings against the BBB person Therefore, in accordance with applicable law, the Director of the Spanish Agency for Data Protection RESOLVES: FIRST: DECLARE, in accordance with the provisions of article 90.1 of the LPCAP the non-existence of responsibility for the CITY COUNCIL OF RIBADEDEVA ( *** POSITION 1 ) in the infringement of article 6.1.f) of the GDPR. SECOND: NOTIFY this resolution to the CITY COUNCIL OF RIBADEDEVA, ( *** POSITION . 1 ). THIRD: In accordance with the provisions of article 50 of the LOPDGDD, the This Resolution will be made public once the interested parties have been notified. Against this resolution, which ends the administrative procedure 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, lodge an appeal for reinstatement with the Director of the Spanish Agency for Data Protection within one month from the day following notification of this resolution or directly contentious appeal administrative before the Contentious-administrative Chamber of the National Court, with in accordance with the provisions of article 25 and section 5 of the fourth additional provision of the Law 29/1998, of 13/07, regulating the Contentious-administrative Jurisdiction, in the within two months from the day following the notification of this act, as provided in article 46.1 of the aforementioned Law. Finally, it is noted that according to the provisions of art. 90.3 a) of the LPACAP, may suspend the final decision in administrative proceedings if the interested party It expresses its intention to file a contentious-administrative appeal. If this is the In this case, the interested party must formally communicate this fact by writing to the Spanish Agency for Data Protection, presenting it through the Electronic Registry of the Agency [https:// /sede-electronica-web/], or through any of the remaining records provided in art. 16.4 of the aforementioned Law 39/2015, of 1/10. Too must transfer to the Agency the documentation proving the effective interposition of the Sponsored links. If the Agency was not aware of the interposition of the contentious-administrative appeal within two months from the day following the Notification of this resolution would terminate the precautionary suspension. Sea Spain Martí Director of the Spanish Agency for Data Protection
