Court of Appeal of Brussels - 2020/AR/1160 (Second Interim Decision)

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Hof van Beroep - 2020/AR/1160
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Court: Hof van Beroep Brussel (Belgium)
Jurisdiction: Belgium
Relevant Law: Article 6(4) GDPR
Article 7 GDPR
Article 12 GDPR
Article 17 GDPR
Article 24 GDPR
Article 94(2) GDPR
Art. 12 Directive on privacy and electronic communications (ePrivacy Directive)
133 WEC
Decided: 24.02.2021
Published:
Parties: Proximus N.V.
APD/GBA
National Case Number/Name: 2020/AR/1160
European Case Law Identifier:
Appeal from: APD/GBA
2020/AR/1160
Appeal to: Not appealed
Original Language(s): Dutch
Original Source: Arrest van 24 februari 2021 van het Marktenhof AR 1160 (in Dutch)
Initial Contributor: Matthias Smet

The Court imposed a fine of 20 000 euros on a telcom operator for failure to comply with the data subject's request to remove her data and illegal sharing of their data with other telephone directories. The Court of Appeal referred several questions to the ECJU, regarding the interaction between the GDPR and the ePrivacy Directive.

English Summary

Facts

In this case Proximus had failed to grant a woman's right of erasure of her personal data and had passed the data on to other telephone directories and directory enquiry services even after receiving several complaints and correspondence from the data subject. On request of the data subject, Proximus had changed the code linked to the data subject's data from 'visible' to 'confidential'. After adjusting the code regarding publication, Proximus received new contact details of the person concerned from her operator, as a result of which the data in the underlying database was automatically overwritten with the new data from the operator.

The Belgian DPA imposed a fine of 20 000 euros on the defendant defendant for infringement of Articles 6, 7 and 12 of the GDPR. In the contested decision, the Belgian DPA found the infringement of Article 6, 7, 12, 13 and 24 GDPR sufficiently proven.

Besides that the DPA orders to cease any further disclosing of personal data of subscribers to third parties of telephone directory or inquiry services when Proximus acquired these data only as a provider of telephone directories and directory enquiry services, taking into account a transition period in order to give Proximus, and in a broader context the sector, the opportunity to develop a new privacy compliant system.

Dispute

- Should the indication of wishes required by Art. 133 WEC be regarded as a right of choice (opt-out system) or as consent within the meaning of the GDPR?

- Does the republication of the personal data constitute unlawful processing of personal data?

- Is there an obligation to pass on a data subject's request to the source of personal data or to third parties other than recipients?

Holding

With regard to the question of whether consent is required or not, the Court of Appeal referred to case law of the Court of Justice, which cites two crucial points:

1° Article 12(1) and recital 38 of the ePrivacy Directive show that subscribers must be given sufficient information before being included in public directories. This allows them to give their free, specific and informed consent within the meaning of Directive 95/46/EC. Reading this together with Article 94 GDPR which states that all references to Directive 95/46/EC should be read as references to the GDPR, we can conclude that this constitutes 'consent' in the sense of the GDPR in this context.

2° In the same judgment, the Court specifies that it concerns a purpose-related consent and that the identity of the recipients of the personal data is not automatically relevant. Basically, the initial consent of the data subject also includes any other subsequent processing of these data by third parties, provided that this processing has the same purpose. This principle of purpose-related consent is not expressly laid down in Article 12, paragraph 2 of the ePrivacy Directive, but results from a “contextual and systematic interpretation” of this article.

Given the fact that this is a complex matter which raises some questions that are not yet tackled by the legislator, the Brussels Court of Appeal stayed the proceedings to request the Court of Justice for a preliminary ruling regarding four questions.

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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.