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


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.


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.


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.


                                                                                   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

 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

    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


    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
        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
       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.


   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.

 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
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

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.