The National Court has ratified in each sentence the fines of 30,000 euros each imposed by the Spanish Data Protection Agency to two telemarketing companies subcontracted by Orange for making telesales calls offering its Jazztel brand services to customers who had expressly requested that they will be excluded from this type of calls.
The judgments of the first chamber of the contentious-administrative proceedings of the National Court, to which EL PAÍS has had access, reject the resources of Global Telemarketing Solutions and Crosseling Operators 3.9. SLU against the sanctions imposed by the AEPD, and confirm fines of 30,000 euros each.
The first ruling, dated July 17, is based on a complaint filed by a Jazztel client with the AEPD in October 2015 warning that it receives repeated phone calls from the company on its fixed line, even though it is on the Robinson List (a common file of exclusion of publicity actions) and to have sent an email to the defender of the user of Jazztel on June 6 of that year so that they proceeded to the exclusion of their data.
Although Jazztel responded to the exercise of the complainant's right of opposition, confirming that it had proceeded to exclude its number of advertising actions or commercial prospecting, the client received commercial calls of products from Orange (formerly Jazztel), made by the entity Global Telemarketing .
Orange is acquitted because it did not authorize subcontracting
This company had signed an agreement with Crosseling for the outsourcing of Orange's telephone marketing services. The AEPD also fined Crosseling although the ruling of the Hearing only refers to the fine to Global.
The AEPD considered that Global Telemarketing violated the right of opposition to be a recipient of commercial calls (article 48.1.b of the General Telecommunications Law) exercised by the complainant through the registration of his telephone number in the Robinson List of Adigital, Regarding the commercial call made to the user, without proving the prior consultation to said exclusion file, obligation included in article 49.4 of the Regulations for the development of Law 15/1999, Organic Law on Data Protection (RLOPD).
Global Telemarketing did not question the realization of the calls, but claimed in their defense that they were made because the complainant requested information via Internet and when requested by the user, is not excluded by the Robinson number filtering system.
However, the ruling indicates that, as the resolution appealed, the documentation provided did not prove this origin, because Global is limited to providing a screenshot of a computer system, without proof of the origin of the data of the whistleblower in Global systems, so that the information provided in this way lacks probative value because it is not supported or supported by other elements of judgment, other than statements by the appellant itself.
The ruling also rejects the argument given by the company that wielded that despite making such commercial calls there was "no intentionality, nor is there any seriousness, nor social repercussion of the infringement, nor benefit for the company nor harm to the user".
The ruling of the Hearing gives the reason to the AEPD that justifies in the concurrence of a serious lack of diligence, since it does not appear that Global did anything to verify any end of the consent for the realization of the calls, and in particular regarding the right of opposition of the complainant, without it being clear that he has consulted the Robinson List exclusion file, obligations which he must answer for his breach and which, had he observed, they would not have produced these facts.
Regarding intentionality, the contested decision states that said parameter must be put in connection with the professionalism of the subjects and the due diligence and said entity has as part of the object of its business the telephone marketing for what is taxed of knowledge and compliance of the norms that regulate this activity, among which are the current LGT and LOPD.
In addition, the ruling adds that it should be noted that there were several advertising calls made and regarding the alleged absence of damages caused to the complainant, suffice it to say that the complainant expressed "that he is a person who works in shifts and receives commercial calls at different times that they keep awake and then find it difficult to sleep. "
The second sentence, dated July 10, against Crosseling Operators 3.9. SLU, which subcontracted its services with Global, is very similar to the first, except that the company in this case not only sued the AEPD but also the Orange Spain itself. The ruling of the Hearing confirms in this case the fine of the Agency and exonerates Orange of any responsibility by not having authorized the outsourcing of the telemarketing services that Crosseling signed with Global.