APD/GBA (Belgium) - 47/2023
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| APD/GBA - 47/2023 | |
|---|---|
 | |
| Authority: | APD/GBA (Belgium) |
| Jurisdiction: | Belgium |
| Relevant Law: | Article 58 WOG Article 95, §1, 3° WOG |
| Type: | Complaint |
| Outcome: | Rejected |
| Started: | 27.04.2023 |
| Decided: | 27.04.2023 |
| Published: | 03.05.2023 |
| Fine: | n/a |
| Parties: | n/a |
| National Case Number/Name: | 47/2023 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | Decision 47/2023 (in NL) |
| Initial Contributor: | Matthias Smet |
The Belgian DPA considered that a data subject complaining against his former employer for publishing a picture in which he appears lacked standing since he could not prove he was actually on the photo.
English Summary
Facts
A data subject alleged that his former employer used a photo of him and published it on the organization's website, as well as on offers, long after the complainant no longer worked for the controller. He also argued that other former employees were also depicted in the photos.
Holding
The DPA noted that it is clear that the data subject objects to his image being used after termination of his employment contract. It however held that it was not established that the complainant was actually appearing in the questionable photos.
The DPA added that the data subject had a right to erasure but did not exercise it. According to the DPA, in the absence of such exercise, no information show that the data subject was depicted in the photos.
In accordance with Article 58 of the WOG, to submit a complaint, one must have standing. In this case, the DPA considered that the data subject could not demonstrate a standing since he could not prove that the controller was processing personal data relating to him. Concerning the other former employees, the data subject had no interest that is sufficiently concrete to be able to submit a complaint relating to them.
In conclusion, the DPA dismissed the complaint for lack of standing.
Comment
This case is overall surprising, in particular, the DPA implied from the absence of exercise of the data subject's right to erasure that he could not prove his presence in the picture. However, it seems quite easy to verify if a person is actually depicted in a photo or not.
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
1/6
Litigation room
Decision 47/2023 of 27 April 2023
File number : DOS-2021-05421
Subject: Lack of exercise of rights by the complainant
The Disputes Chamber of the Data Protection Authority, composed of Mr Hielke Hijmans,
sole chairman;
Having regard to Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal data and
on the free movement of such data and repealing Directive 95/46/EC (general
Data Protection Regulation), hereinafter GDPR;
Having regard to the law of 3 December 2017 establishing the Data Protection Authority, hereinafter WOG;
Having regard to the rules of internal order, as approved by the Chamber of Representatives
on December 20, 2018 and published in the Belgian Official Gazette on January 15, 2019;
Having regard to the documents in the file;
has taken the following decision regarding:
.
The complainant: Mr X, hereinafter referred to as “the complainant”; .
.
The controller: Y, hereinafter “the controller” Decision 47/2023 - 2/6
I. Factual Procedure
1. On 29 September 2021, the complainant submitted a complaint to the Data Protection Authority
against the controller.
2. The object of the complaint concerns the alleged use of a hem, according to the complainant
relevant photo by the controller. The complainant who is a former employee
of the controller, states that it is displayed on the website of the
controller on a photo of the XR team, as well as his image would become
used on quotations and this for some time after the complainant is no longer working for the
controller. The complainant also states that the
controller also the image of other employees who are no longer in
service, continue to be used.
3. On October 18, 2021, the complaint will be declared admissible by the First Line Service on the basis of
Articles 58 and 60 WOG and the complaint is based on art. 62, §1 WOG transferred to the
Litigation room.
II. Motivation
4. On the basis of the elements in the file known to the Litigation Chamber, and on the basis of the
powers assigned to it by the legislator pursuant to Article 95, §1 WOG
the Litigation Chamber about the further follow-up of the file; in this case, the Disputes Chamber
to dismiss the complaint in accordance with Article 95, §1, 3° WOG, on the basis of the
following justification.
5. In the event of a dismissal, the Disputes Chamber must gradually investigate and substantiate:
- whether there is insufficient prospect of a conviction, after which a technical dismissal follows;
- whether a successful conviction would be technically feasible, but based on the general
importance, a (further) prosecution is undesirable, after which a policy dismissal follows.
In the event that more than one ground is dismissed, the grounds for dismissal (resp. technical
dismissal and policy dismissal) should be dealt with in order of importance. 2
1
Cf. Judgment of the Brussels Court of Appeal (Marktenhof), 2 September 2020, no. 2020/5460, 18.
2Ibid. Decision 47/2023 - 3/6
6. In the present case, the Disputes Chamber proceeds to a technical dismissal. There is one motive
on the basis of the decision of the Disputes Chamber as to why it considers it undesirable
follow up on the file and therefore decide not to proceed, inter alia, with a treatment
basically.
7. The Disputes Chamber has taken cognizance of the complaint in which the complainant indicates that his
image would be used by the controller notwithstanding the
the complainant is no longer working on his behalf.
8. It appears from the nature of the complainant's request that he objects to his image na
termination of the cooperation is still further used by the
controller.
9. However, the Disputes Chamber cannot give any further follow-up to the First Line Service
complaint declared admissible because the facts do not show whether the photo of the XR team on which 8
persons are depicted as they appear on the website of the controller
is located, and as attached by the complainant to his complaint, actually corresponds to a
photo of the complainant. After all, it is not an established fact that the complainant is actually one of the persons
that are in the relevant photo. In addition, the complainant has a right to
data erasure with regard to its image in the photo is not itself directly exercised
with regard to the controller, so that in the absence of this, no information can be obtained either
established that the complainant is indeed depicted in the photo in question.
10. As regards the alleged image of the complainant on the tenders of the
controller is also lacking any evidence, as no offer was made
added to the complaint.
11. The Disputes Chamber notes that it was taken by the complaint as it became admissible
stated by the First Line Service and that the handling of this complaint did not take place
3
in accordance with the procedural requirements laid down in Article 60(2) WOG in the absence of
the necessary indication for the identification of the processing to which it relates.
12. As to the part of the complaint relating to the image of others
former employees by the controller and the requirement of interest
on behalf of the complainant, the Litigation Chamber points out the following:
3Art. 60. The first-line service examines whether the complaint or request is admissible.
A complaint is admissible when:
- it is drawn up in one of the national languages;
- contains a statement of the facts and the necessary indications for the identification of the processing to which it relates;
- it falls within the competence of the Data Protection Authority.
[…] Decision 47/2023 - 4/6
Article 58 of the WOG states: “Anyone can submit a complaint or a complaint in writing, dated and signed
submit a request to the Data Protection Authority”. In accordance with Article 60,
paragraph 2 WOG “is a complaint admissible if it:
- is drawn up in one of the national languages;
- contains a statement of the facts, as well as the necessary indications for the identification of the
processing to which it relates;
- it falls within the competence of the Data Protection Authority”.
13. Determine the preparatory work of the WOG: “The Data Protection Authority
can receive complaints or requests from anyone; natural persons as well
legal persons, associations or institutions allegedly infringing the Regulation
wish to sue. Submit a complaint or request to the Data Protection Authority
in writing, dated and signed by the authorized person. A request
must be interpreted in the broad sense of the word (request for information or explanation, a
request to mediate, ...)” .
14. The WOG thus does not exclude that a person other than the data subject or the person employed by the
the person concerned is authorized, as referred to in Article 220 of the Law of 30 July 2018 on the
protection of natural persons with regard to the processing of personal data,
can file a complaint with the Authority.
15. While the GDPR approaches the 'complaint' from the point of view of the data subject, by the
imposing obligations on control authorities when a person makes a complaint (see the
Articles 57, 1., f) and 77 of the GDPR), the GDPR does not prevent national law from allowing persons other than
gives the person concerned the possibility to lodge a complaint with the national supervisory authority.
The possibility of such a filing also corresponds to the assignments
assigned by the GDPR to the supervisory authorities. In that respect and in general
taken, each control authority ensures: the monitoring and enforcement of the application of
the GDPR (Article 57, 1., a) GDPR), and the performance of all other tasks related to the
protection of personal data (Article 57, 1., v) GDPR).
16. The Litigation Chamber considers that Article 58 WOG gives each person the option
to file a complaint, provided that he has a sufficient interest in it in accordance
aforementioned provisions of the GDPR.
The condition is that the complainant demonstrates a sufficient interest. In this regard, the
Litigation Chamber to establish that the complainant has submitted his complaint in his own name and from the
factual elements and documents submitted do not show that the complainant has any
power of representation to file a complaint for the other former Decision 47/2023 - 5/6
staff members. To the extent that the complaint relates to the processing of the
personal data, being the image, of other former employees by the
controller, there is therefore no interest on the part of the complainant.
17. Given that the complainant does not prove that the controller
processes personal data relating to him in the absence of evidence regarding both
his identity in relation to the photo on the website and with regard to the exercise of his rights
directly to the controller, nor demonstrates that he has a
interest that is sufficiently concrete to be able to submit a complaint insofar as this is the case
relates to other former employees, the Disputes Chamber will decide the complaint
to dismiss entirely.
III. Publication of the decision
18. Given the importance of transparency with regard to decision-making by the
Litigation Chamber, this decision will be published on the website of the
Data Protection Authority. However, it is not necessary for this to include the identification data
of the parties are disclosed directly.
19. In accordance with its dismissal policy, the Litigation Chamber will issue the decision to the identified
4
data controllers. After all, the Disputes Chamber has decided to
to notify the defendants of dismissal decisions ex officio. See the Disputes Chamber
however waives such notification where the complainant has requested anonymity
against the defendant and the notification of the decision to the defendant, even if
it is pseudonymised, nevertheless makes it possible to (re)identify the complainant . This is
however, not the case in the present case.
FOR THESE REASONS,
the Litigation Chamber of the Data Protection Authority, after deliberation, decides on the basis
of Art. 95, §1, 3° of the law of December 3, 2017 establishing the
Data Protection Authority, to dismiss the present complaint.
4
cf. Title 5 – Will the dismissal of my complaint be published? Will the counterparty be notified? from the
dismissal policy of the Disputes Chamber.
5Ibid. Decision 47/2023 - 6/6
Pursuant to Article 108, § 1 of the WOG, within a period of thirty days from the notification
this decision may be appealed to the Marktenhof (Brussels Court of Appeal), with the
Data Protection Authority as defendant.
Such an appeal may be lodged by means of an inter partes petition that the in art
6
1034terofthe Judicial Codemustcontainenumeratedenumerations.
contradictions must be submitted to the Registry of the Market Court in accordance with Article
1034quinquiesvanhetGer.W. , or via the Deposit Information System of Justice (article 32ter of
the Ger.W.).
To enable the complainant to consider other possible remedies, the
8
Litigation Chamber the complainant to the explanation in its dismissal policy .
(get). Hilke Hijmans
Chairman of the Litigation Chamber
6 The petition states under penalty of nullity:
1° the day, month and year;
2° the surname, first name, place of residence of the applicant and, where applicable, his capacity and his national register or
enterprise number;
3° the surname, first name, place of residence and, where appropriate, the capacity of the person to be summoned;
4° the object and brief summary of the means of the claim;
5° the court before which the action is brought;
6° the signature of the applicant or his lawyer.
7 The petition with its annex, in as many copies as there are parties involved, is sent by registered letter to the
clerk of the court or deposited with the clerk of the court.
8Cf. Title 4 – What can I do if my complaint is closed? of the dismissal policy of the Litigation Chamber.
