Penalty for sending advertising
Penalty for sending advertising
Once again, the Spanish Data Protection Agency(AEPD) tells us very clearly that in order to send advertising, a series of legal premises must be met and these were not taken into account by a company that was fined(EXP202315094) with 10,000 euros for failing to comply with Article 21 of the LSSI.
Infringement of art. 21 LSSI
Article 21 of the LSSI, establishes the prohibition of sending commercial communications by email or other equivalent means (such as SMS or WhatsApp) that have not been previously requested or authorized by the recipients of these.
In addition to the above, it is stated that in the case of prior consent having been granted, the provider must provide the recipient with the possibility of opposing the processing of his data for commercial purposes, through a simple and free procedure.
Case analysis
The claimant was not the first time he filed a complaint before the AEPD against the same company that sent him the advertisement without his consent (Gafas en Red de Ópticas S.L.), as there are records since 2021.
In the previous complaints, the AEPD did not sanction the company because the company argued that there was a prior contractual relationship, so that the exception of art. 21.2 LSSI is applicable, and also because the AEPD considered that the exercise of the right of suppression presented by the complainant was duly attended to, so that a sanctioning procedure was never initiated.
However, on this occasion, the company acknowledged having sent an SMS to the claimant due to a specific error, as a result of a commercial campaign aimed at former customers, which was carried out by means of instant messaging.
Although the complainant requested the deletion of her personal data in advance, she received three SMS messages on her home phone between May and September 2023.
In these messages, the claimant points out that none of them included the possibility of unsubscribing, a circumstance that was defended by the company in question, explaining that due to a matter of space in the design of the message, it was not possible to include it.
However, in a link included in the message, it was possible to access a landing page exclusively for SMS, where you could choose to unsubscribe.
Aggravated sanction
Article 38.4 d) LSSI classifies the sending of commercial communications by e-mail or other equivalent means of electronic communication, without complying with the requirements of art. 21 LSSI as a minor infringement.
However, in the case analyzed, it must be taken into account that there were previous cases with the same claimant and the same company, which is understood by the AEPD as an aggravating factor, which implies the existence of intentionality, since despite the claimant’s previous requests to the offending company, so that they would not send her advertising, and according to having deleted her data, SMS were sent with non-consensual commercial information.
The penalty amounts to 10,000 euros; with the reductions applicable as a consequence of the acknowledgement of liability, being the final amount to be paid 6,000 euros.
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