AEPD - PS/00232/2020
|AEPD - PS/00232/2020|
|Relevant Law:||Article 6(1) GDPR|
Article 6(1)(b) GDPR
|Parties:||Alterna Operador Integral SL|
|National Case Number/Name:||PS/00232/2020|
|European Case Law Identifier:||n/a|
|Original Source:||AEPD (in ES)|
The Spanish DPA (AEPD) imposed a fine of €50,000 on Alterna Operador Integral SL (Flip Energy) for processing a data subject's personal data without a legal basis (Article 6(1) GDPR). Flip Energy had switched switched the data subject over from the energy provider Naturgy to Flip Energy without obtaining consent or a contract for doing so.
English Summary[edit | edit source]
Facts[edit | edit source]
The complainant filed an action against Alterna Operador Integral SL (Flip Energy).
The complainant complained that her energy provider was switched from Naturgy to Flip Energy without her consent. Invoices proved that this change had occured.
As such, the complainant's personal data were transferred to Flip Energy without having proof of consent from the concerned data subject, the complainant, or that there were other legitimate purposes for processing that personal data.
Flip Energy claims that the subcontracted company (Sycgestion Global Energy, S.L.) was responsible for contacting and promoting Flip Energy services to the data subject.
Dispute[edit | edit source]
Is it contrary to Article 6(1) of the GDPR for a customer to have their energy provider switch from one company to another without contracting with them or having gathered their consent prior to the switch?
Holding[edit | edit source]
The Spanish DPA (AEPD) held that Alterna Operador Integral SL (Flip Energy) infringed Article 6(1) of the GDPR as it processed the complainant's data without a legal basis. The data subject's personal data were incorporated into Flip Energy's information system without proving that it was necessary for a contract, that the data subject had consented to it, or that there was another legal basis making the processing lawful.
The DPA noted that the complainant had taken no action or caution with the subcontracted company (Sycgestion Global Energy, S.L.) responsible for contacting and promoting Flip Energy services to the data subject. However, the DPA held that inactivity by Alterna Operador Integral SL (Flip Energy) lead to failure to take action or precautions.
The DPA also held that the defendant failed to prove that the complainant had contracted for the supply of energy from Flip Energy (and as such contracted for the switch). The defendant did not provide any documents obtained from the complainant indicating a contractual relationship which effectively identified the complainant.
Therefore, the Spanish DPA imposed a fine of €50,000 on Alterna Operador Integral SL for infringing Article 6(1)(b) of the GDPR.
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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.
1/9 Procedure No.: PS / 00232/2020 RESOLUTION OF SANCTIONING PROCEDURE Of the procedure instructed by the Spanish Agency for Data Protection and based on to the following: ACTS FIRST: Mrs. A.A.A. (hereinafter, the claimant) dated February 20, 2020 filed a claim with the Spanish Agency for Data Protection. The The claim is directed against ALTERNA OPERADOR INTEGRAL, S.L. with NIF B87075982 (FLIP ENERGÍA) (hereinafter, the claimed one). The claimant states that there has been a change of electricity marketer without your consent. The previous company was Naturgy, and now she is the one claimed. Provides Naturgy bills and Flip Energía letters and bills. SECOND: In view of the facts presented in the claim and the documentation provided by the claimant, the General Subdirectorate for Inspection of Data proceeded to transfer it to the claimed entity and request information, of in accordance with the provisions of article 65.4 of Organic Law 3/2018, of 5 December, Protection of Personal Data and guarantee of digital rights. In writing dated March 31, 2020, information is requested from FLIP ENERGÍA, S.L., (trade name, ALTERNA) who responds on July 1, this year stating the following: First, they state that the respondent does not make commercial calls in order to promote their services, but that such work has been subcontracted with different telemarketing companies They add that the claimant hired the services of the defendant through the telemarketing company Sycgestion Global Energy, S.L., who used its own database of data to contact her and promote, as responsible for the treatment of the services of the claimed, and consequently, the responsibility of the Contact with the claimed was from the aforementioned entity and not from the claimed. That the respondent terminated the contract for the provision of services with Sycgestion Global Energy, S.L., as stated in the accompanying document. They point out that the respondent has carried out a series of actions such as the selection of suppliers that guarantee compliance with the regulations of data protection, the signing of data transfer and data access contracts with the suppliers, where appropriate and training and awareness of the C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 2/9 workers in respect of the principles and obligations contained in the regulations of data protection. THIRD: On September 15, 2020, the Director of the Spanish Agency of Data Protection agreed to initiate a sanctioning procedure to the claimed, with in accordance with the provisions of articles 63 and 64 of Law 39/2015, of October 1, of the Common Administrative Procedure of Public Administrations (hereinafter, LPACAP), for the alleged violation of Article 6.1.b) of the RGPD, typified in the Article 83.5 of the RGPD. FOURTH: Once the aforementioned initiation agreement was notified, the respondent requested an extension of term and subsequently submitted a brief of allegations in which, in summary, stated what he considered appropriate in defense of his interests, pointing out that the provider processed the data of his contacts in his own name and on behalf of through their own business networks through phone calls (telemarketing), acting as data controller and, when a user was interested in hiring Alterna's services, transferred the call to a telemarketer who, acting as manager of the treatment of Alterna, carried out the verification and recording of the relative call the characteristics of the contracted service and the consent given by the client. That Alterna's actions can only be concluded that it has been diligent and in accordance with the personal data protection regulations, taking into account that in in order to guarantee that the personal data flows between Alterna and SYC GESTION they were properly regulated. That Alterna signed a mixed service contract of services in which the transfer of personal data and the order of the treatment, giving clear and precise work instructions to the Supplier both in the Contract and its Annexes, which are attached to this document as Document No. 1. Therefore, they want to highlight the good faith that the Company has shown in each moment. That Alterna made the necessary inquiries to clarify the facts object of the incident and identified a series of irregularities carried out by part of the Provider and that allows to conclude that SYC GESTION did not follow its instructions. The provider as data controller guaranteed Alterna the Lawful origin of the personal data object of the transfer. Specifically SYC GESTION undertook to obtain the consent of the interested parties to carry out carry out the transfer of data to the Company, for the purpose of the purpose outlined. In relation to the role of the Provider in charge of the treatment, of course It could be otherwise, in the "Contract for the provision of telemarketing services" and "Data Access Contract" signed between the parties, regulated the provision of services with access to data of the Company Provider giving rigorous compliance with the clauses, article 28 of the RGPD. The breaches of the Contract, committed by SYC GESTION, are listed. C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 3/9 It also states that the company acted with the utmost speed and diligence, since at the time that the claimant's granddaughter, in representation of the claimant, contacted Alterna, on the occasion of express his will to terminate his contract, proceeded immediately to the imminent cancellation of the debt with the claimant. Consequently, the claimant was registered in their systems as client only for ten days as she was discharged on January 11, 2020. In this regard, she was discharged from Alterna on January 21, 2020, having been registered with another marketer by the claimant. It indicates that there was no type of penalty for the termination of the contract or for the return of their receipts, the Company taking charge of the consumption that was invoiced. A continuous and fluid communication flow was established with the claimant, responding at all times to their requirements and once the Personal data is no longer necessary for the purpose of the management of the incident, proceeded to block the personal data of the claimant. In the same The moment Alterna learned of an alleged incident, it contacted SYC Gestión requesting information and documentation in this regard, through different communication channels, without obtaining any response, which adopted the timely measures in order to avoid that, in the future, other customers reveal facts such as those reported by the claimant and terminated the contract with SYC MANAGEMENT on June 26, 2020. He adds, the measures it has implemented to guarantee quality in the management of the recruitment process. On the other hand, it considers that there was a valid pre-contractual relationship, all Once there was a contest of wills and taking a series of measures pre-contractual, in accordance with article 6.1b) RGPD or pursuant to article 6.1 a) RGPD. It also states that the breach would be attributable to SYC GESTON, which the supplier repeatedly violated the instructions provided by Alterna, treating the data for which the Company was responsible for the treatment, and must in this case, SYC Gestión acquires the status of data controller. Finally, it points out that in the event that the files are not filed, actions in the present procedure, the qualified decrease of guilt and unlawfulness in the conduct of Alterna, who acted with the greatest possible diligence, and that, consequently, the Article 83 RGPD and 76 LOPDGDD. FIFTH: On October 16, 2020, the instructor of the procedure agreed to the opening of a period of practical tests, taking as incorporated the preliminary investigation actions, E / 03187/2020, as well as the documents provided by the claimed. SIXTH: On November 19, 2020, a resolution proposal was formulated, proposing that the Director of the Spanish Agency for Data Protection C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 4/9 punish the complained party for an infraction of article 6.1 of the RGPD, typified in the Article 83. 5) of the RGPD, with a fine of 50,000 euros. SEVENTH: Once the resolution proposal was notified, the claimed party submitted a written of allegations being ratified in those made to the Initiation Agreement, that is to say: but to conclude that the performance of my client in this case has been diligent and according to the personal data protection regulations and this part wants to highlight both the quick action and the good faith that ALTERNA has shown in each moment, fulfilling the duty of diligence required, without prejudice, to the corresponding responsibilities that, where appropriate, may correspond to the Provider. SYC GESTION's performance was carried out not only in breach flagrantly the contract signed with the Company, but rather, this party considers proven the contractual bad faith of the aforementioned telemarketing entity, as well as a malicious and potentially fraudulent attitude, which is why this party has filed the pertinent complaint against the Provider. In addition, the repeated non-observance of ALTERNA's instructions, as data controller, necessarily convert SYC GESTION into responsible for the treatment. My client was the victim of a hoax and understood that there was a contractual relationship with the complainant. However, the error was corrected with absolute speed, proceeding with total diligence: the data of the complainant is remained active in the systems for only ten (10) days, proceeding my represented, as soon as it became aware of the claimant's intention to change marketer, to cancel its debt and, subsequently to the blocking of its personal information. The Company has acted with the highest level of due diligence, of compliance with its internal procedures, substituting the services of the Provider by those of other partners who, like the Supplier, guarantee the strict compliance with data protection regulations and that are more rigorous in their committed SYC MANAGEMENT. In this sense, my client is immersed in a process audit in order to carry out robust audits of your suppliers and collaborators. In any case, it should be understood that there is no of ALTERNA a subjective element of guilt for which it would be appropriate decree the file of this sanctioning procedure. Personal information affected, correspond mainly to contact and character data identification, without including in any case, data from special categories of data or criminal offenses. It is obvious and common sense that the activity of the Company (like any other company) is linked to the treatment of Personal data. However, the foregoing, ALTERNA's activity is not linked to the infringing treatment of personal data, if not to the supply energetic. The actions of the Company have in no case been intentional, or malicious, nor has it received any kind of benefit. Also, he had no intention any of violating data protection regulations, or causing damage or harm to the complainant. That the present brief of allegations, serve to admit it, and previous the appropriate procedures agree the file of the referenced file, leaving without effect the procedure initiated against this trade". In view of all the actions, by the Spanish Agency for Data Protection In this proceeding, the following are considered proven facts, C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 5/9 ACTS FIRST: A change of electricity marketer has been carried out without the consent of the claimant. The previous company was Naturgy, and now it is the claimed. SECOND: The invoices provided by the claimant include the change of trading company. THIRD: The personal data of the claimant were incorporated into the systems information of the company, without having proven that he had contracted legitimately, have your consent for the collection and treatment later of your personal data, or there is any other cause that makes the treatment carried out. 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 arts. 47 and 48.1 of the LOPDGDD, the Director of The Spanish Agency for Data Protection is competent to resolve this process. II The complained party is charged with the commission of an infraction for violation of Article 6 of the RGPD, "Legality of the treatment", which indicates in its section 1 the cases in which the processing of third party data is considered lawful: "1. The treatment will only be lawful if at least one of the following is met terms: a) the interested party gave their consent for the processing of their data personal for one or more specific purposes; b) the treatment is necessary for the performance of a contract in which the interested is part or for the application at the request of this of measures pre-contractual; (…) " The offense is typified in Article 83.5 of the RGPD, which considers as such: "5. Violations of the following provisions will be sanctioned, in accordance with paragraph 2, with administrative fines of maximum EUR 20,000,000 or, in the case of a company, an amount equivalent to a maximum of 4% of the total annual global business volume of the previous financial year, opting for the highest amount: a) The basic principles for the treatment, including the conditions for the C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 6/9 consent in accordance with articles 5,6,7 and 9. " Organic Law 3/2018, on the Protection of Personal Data and Guarantee of Digital Rights (LOPDGDD) in its article 72, under the heading "Infractions considered very serious ”provides: "1. In accordance with the provisions of article 83.5 of the Regulation (E.U.) 2016/679 are considered very serious and will prescribe after three years the infractions that suppose a substantial violation of the articles mentioned in that and, in in particular, the following: (…) b) The processing of personal data without the concurrence of any of the conditions of legality of the treatment established in article 6 of the Regulation (EU) 2016/679. " III The documentation in the file shows that the claimed, violated article 6.1 of the RGPD, every time he processed the data claims of the claimant without having any standing to do so. The data Claimant's personal data were incorporated into the information systems of the company, without having proven that it had legitimately hired, provided of your consent for the collection and subsequent processing of your data personal, or there is any other cause that makes the treatment lawful. The personal data of the claimant were recorded in the files of the claimed and were processed for the issuance of invoices for services associated with the claimant. Consequently, it has carried out a processing of personal data without that it has proven that it has the legal authorization for it. It should be noted that the claimant did not adopt any kind of measure or Caution with the outsourced company that you entrusted to carry out hiring, and in this case the inactivity of the claimed was proven, in the failure to adopt measures or precautions. Article 6.1 RGPD says that the treatment “will be lawful if it is necessary for the execution of a contract in which the interested party is a party ”. It was therefore essential that the respondent accredited to this Agency that the claimant had contracted with her the electricity supply; that at the time of the contracting had deployed (through its treatment manager) the diligence that the circumstances of the case required to ensure that the person who facilitated as his bank details and other personal data was effectively his headline. The respondent has not provided any document collected from the client at the time of the contracting that allows its identification. IV C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 7/9 In determining the administrative fine to be imposed, the provisions of articles 83.1 and 83.2 of the RGPD, precepts that indicate: "Each supervisory authority will guarantee that the imposition of fines administrative under this article for the infractions of this Regulations indicated in paragraphs 4, 9 and 6 are in each individual case effective, proportionate and dissuasive. " "Administrative fines will be imposed, depending on the circumstances of each individual case, as an additional or substitute for the measures contemplated in the Article 58, paragraph 2, letters a) to h) and j). When deciding to impose a fine administrative and its amount in each individual case will be duly taken into account: a) the nature, severity and duration of the offense, taking into account the nature, scope or purpose of the processing operation in question as well as the number of affected stakeholders and the level of damage and damages they have suffered; b) intentionality or negligence in the infringement; c) any measure taken by the controller or processor to mitigate the damages suffered by the interested parties; d) the degree of responsibility of the person in charge of the treatment, taking into account the technical or organizational measures that have applied by virtue of articles 25 and 32; e) any previous infringement committed by the person in charge or the person in charge of treatment; f) the degree of cooperation with the supervisory authority in order to remedy the violation and mitigate the possible adverse effects of the violation; g) the categories of personal data affected by the infringement; h) the way in which the supervisory authority learned of the infringement, in particular if the person in charge or the person in charge notified the infraction and, in such case, to what extent; i) when the measures indicated in Article 58 (2) have been previously ordered against the person in charge or the person in charge in relation to the same matter, compliance with said measures; j) adherence to codes of conduct under Article 40 or to mechanisms certification approved in accordance with Article 42, and k) any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits obtained or losses avoided, direct or indirectly, through the infringement. " Regarding section k) of article 83.2 of the RGPD, the LOPDGDD, article 76, "Sanctions and corrective measures", provides: "2. In accordance with the provisions of article 83.2.k) of Regulation (EU) 2016/679 The following may also be taken into account: a) The continuing nature of the offense. b) The linking of the offender's activity with the performance of treatments of personal data. c) The benefits obtained as a result of the commission of the offense. d) The possibility that the affected person's conduct could have led to the C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 8/9 commission of the offense. e) The existence of a merger process by absorption after the commission of the infringement, which cannot be attributed to the absorbing entity. f) Affecting the rights of minors. g) To have, when not mandatory, a delegate for the protection of data. h) The submission by the person in charge or in charge, with character voluntary, to alternative dispute resolution mechanisms, in those cases in which there are controversies between those and any interested." V In accordance with the provisions of the RGPD in its art. 83.2, when deciding to impose an administrative fine and its amount in each individual case will take into account the aggravating and mitigating factors that are listed in the indicated article, as well as any other that may be applicable to the circumstances of the case. Consequently, the following have been taken into account as aggravating factors: - The intent or negligence of the offense (art. 83.2 b). - Basic identifiers present are affected (name, address, bank account number, cups) (art. 83.2 g) - The obvious link between the business activity of the claimed and the treatment of personal data of clients or third parties (art. 83.2 k of the RGPD in relation to art. 76.2 b of the LOPDGDD) Therefore, in accordance with the applicable legislation and the criteria of graduation of the sanctions whose existence has been accredited, the Director of the Spanish Agency for Data Protection RESOLVES: FIRST: IMPOSE ALTERNA OPERADOR INTEGRAL, S.L., with NIF B87075982, for an infraction of Article 6.1.b) of the RGPD, typified in Article 83.5 of the RGPD, a fine of 50,000 euros (fifty thousand euros). SECOND: NOTIFY this resolution to ALTERNATE OPERADOR INTEGRAL, S.L. THIRD: Warn the sanctioned person that the sanction imposed by a Once this resolution is enforceable, in accordance with the provisions of the art. 98.1.b) of Law 39/2015, of October 1, on Administrative Procedure Common of Public Administrations (hereinafter LPACAP), within the payment period voluntary established in art. 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 December 17, by means of their entry, indicating the NIF of the sanctioned person and the number of procedure that appears in the heading of this document, in the account restricted number ES00 0000 0000 0000 0000 0000, opened in the name of the Agency Spanish Data Protection in the bank CAIXABANK, S.A .. In case Otherwise, it will be collected in the executive period. C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es 9/9 Notification received and once executive, if the execution date 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 day 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. 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 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 file, optionally, an appeal for reconsideration before the Director of the Spanish Agency for Data Protection within a month to count from the day after notification of this resolution or directly contentious-administrative appeal 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. Finally, it is pointed out that in accordance with the provisions of art. 90.3 a) of the LPACAP, may provisionally suspend the final resolution through administrative channels if the interested party expresses his intention to file contentious-administrative appeal. If this is the case, the interested party must formally communicate this fact through letter 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 proving 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. Mar Spain Martí Director of the Spanish Agency for Data Protection C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es