In the matter of the General Data Protection Regulation
DPC Complaint Reference:
IMI Ref -
In the matter of a complaint, lodged by with Agencia Española de
Protección de Datos the Data Protection Authority for Spain, pursuant to Article 77 of the General
Data Protection Regulation, concerning
Record of Amicable Resolution of the complaint and its consequent withdrawal pursuant to
Section 109(3) of the Data Protection Act, 2018
Further to the requirements of Internal EDPB Document 06/2021 on the practical implementation
of amicable settlements (adopted on 18 November 2021)
RECORD OF AMICABLE RESOLUTION FOR THE
PURPOSE OF INTERNAL EDPB DOCUMENT 06/2021 ON
THE PRACTICAL IMPLEMENTATION OF AMICABLE
SETTLEMENTS, ADOPTED 18 NOVEMBER 2021
Dated the 26th day of August 2022
Data Protection Commission
21 Fitzwilliam Square South
Dublin 2, Ireland
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Background
1. On 9 December 2020, (“the Data Subject”) lodged a complaint
pursuant to Article 77 GDPR with the Agencia Española de Protección de Datos ("AEPD") the
Data Protection Authority for Spain (“the Recipient SA”) concerning
(“the Respondent”).
2. In circumstances where the Data Protection Commission (“the DPC”) was deemed to be the
competent authority for the purpose of Article 56(1) GDPR, the Recipient SA transferred the
complaint to the DPC on 4 February 2021.
The Complaint
3. The details of the complaint were as follows:
a. The Data Subject emailed the Respondent on 12 November 2020, 15 November 2020
and 06 December 2020 in relation to an alleged fake account on the platform
which was using the Data Subject’s photographs and name.
b. The Data Subject subsequently made an access and erasure request to the
Respondent.
c. The Data Subject did not receive any response from the Respondent.
Action taken by the DPC
4. The DPC, pursuant to Section 109(4) of the Data Protection Act, 2018 (“the 2018 Act”), is
required, as a preliminary matter, to assess the likelihood of the parties to the complaint
reaching, within a reasonable time, an amicable resolution of the subject-matter of the
complaint. Where the DPC considers that there is a reasonable likelihood of such an amicable
resolution being concluded between the parties, it is empowered, by Section 109(2) of the
2018 Act, to take such steps as it considers appropriate to arrange or facilitate such an
amicable resolution.
5. Following a preliminary examination of the material referred to it by the Recipient SA, the DPC
considered that there was a reasonable likelihood of the parties concerned reaching, within a
reasonable time, an amicable resolution of the subject matter of the complaint. The DPC’s
experience is that complaints of this nature are particularly suitable for amicable resolution in
circumstances where there is an obvious solution to the dispute, if the respondent is willing
to engage in the process. In this regard, the DPC had regard to:
a. The relationship between the Data Subject and Respondent (being, in this case, an
individual and a service provider); and
b. The nature of the complaint (in this case, an unsuccessful attempt by the Data Subject
to exercise his/her data subject rights).
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6. While not relevant to the assessment that the DPC is required to carry out pursuant to Section
109(4) of the 2018 Act, the DPC also had regard to Internal EDPB Document 06/2021 on the
practical implementation of amicable settlements, adopted on 18 November 2021
(“Document 06/2021”), and considered that:
a. the possible conclusion of the complaint by way of amicable resolution would not
hamper the ability of the supervisory authorities to maintain the high level of
protection that the GDPR seeks to create; and that
b. such a conclusion, in this case, would likely carry advantages for the Data Subject,
whose rights under the GDPR would be vindicated swiftly, as well as for the controller,
who would be provided the opportunity to bring its behaviour into compliance with
the GDPR.
Amicable Resolution
7. The DPC engaged with both the Data Subject (via the Recipient SA) and Respondent in relation
to the subject-matter of the complaint. Further to that engagement, it was established that,
prior to the DPC’s engagement with the Respondent, the Respondent had contacted the Data
Subject on, 26 January 2021. In that correspondence to the Data Subject, the Respondent
advised that an extensive investigation had been conducted by it. The outcome of this
investigation concluded that the profile in question could not be located based on the
information provided by the Data Subject. The Respondent also apologised to the Data Subject
in its delay in replying to them.
8. On foot of the contact by the DPC, the Respondent conducted a fresh investigation of the
issue. Following this investigation, the Respondent confirmed to the DPC that the alleged fake
account could not be located on its platform. The Respondent explained that impersonation
reports are constantly monitored by it, and that the profile might have already been removed.
In the circumstances, the Respondent agreed to take the following action:
a. The Respondent undertook to investigate further, in the event of the complainant
notifying it in relation to another instance of a fake account being created.
b. The respondent apologised to the Data Subject for not responding sooner.
c. The Respondent offered to provide the Data Subject’s with a copy of their personal
data, which was limited to her correspondence with customer care, as the
complainant never held a account.
9. The DPC forwarded a letter to the Data Subject on 13 September 2021 outlining the
Respondent’s response and requesting the Data Subject’s comments in relation to the
information provided by the Respondent.
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