In the matter of the General Data Protection Regulation
DPC Complaint Reference:
IMI Complaint Reference Number:
In the matter of a complaint, lodged by with the German Federal Data Protection
Authority pursuant to Article 77 of the General Data Protection Regulation, concerning WhatsApp
Ireland Limited
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 EDPB Guidelines 06/2022 on the practical implementation of
amicable settlements Version 2.0, adopted on 12 May 2022
RECORD OF AMICABLE RESOLUTION FOR THE
PURPOSE OF EDPB GUIDELINES 06/2022 ON THE
PRACTICAL IMPLEMENTATION OF AMICABLE
SETTLEMENTS VERSION 2.0, ADOPTED 12 MAY 2022
Dated the 24th day of November 2022
Data Protection Commission
21 Fitzwilliam Square South
Dublin 2, Ireland
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Background
1. On 13 August 2018, (“the Data Subject”) lodged a complaint pursuant to
Article 77 GDPR with the German Federal Data Protection Authority (“the Recipient SA”)
concerning WhatsApp Ireland Limited (“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 26 April 2019.
The Complaint
3. The details of the complaint were as follows:
a. The Data Subject contacted the Respondent on 11 June 2018, requesting access to
their personal data.
b. The Data Subject was not satisfied with the Respondent’s response to their access
request.
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 consumer and a service provider); and
b. The nature of the complaint (in this case, an unsuccessful attempt by the Data Subject
to exercise their data subject rights).
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 EDPB Guidelines 06/2022 on the practical
implementation of amicable settlements Version 2.0, adopted on 12 May 2022 (“Document
06/2022”), and considered that:
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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
the Respondent could not locate any personal data related to the Data Subject, other than in
connection with their access request. In the circumstances, the Respondent took the following
actions:
a. the Respondent outlined how the Data Subject could access their personal data using
its in app tools; and
b. following the provision of identity verification and account ownership information,
the Respondent confirmed to the DPC that it was unable to locate any personal data
relating to the Data Subject, other than in connection with their access request.
8. The DPC outlined the Data Subject’s complaint to the Respondent on 18 July 2019. On 2
August 2019, the Respondent explained that it had originally responded to the Data Subject’s
access request on 24 January 2019, providing information on how they could use its in app
tools to access their personal data. However, the Respondent noted that it understood from
the complaint documentation provided by the DPC that the Data Subject no longer had its
application installed on their device, and as such could not use these tools. The Respondent
confirmed it would be happy to provide the Data Subject with a copy of their personal data,
to the extent that it held such information, upon receiving proof of identity and of ownership
of the mobile number associated with the account at issue. However, the Respondent noted
that, based on the information provided by the DPC, it was currently unable to locate any
personal data associated with the Data Subject, other than in connection with their original
access request. Following engagement by the DPC, the Data Subject subsequently provided
the required documentation.
9. Following further engagement with the Data Subject and the Respondent, on 8 November
2021 the DPC wrote to the Data Subject via the Recipient SA. The DPC stated that it had
provided the relevant identity documentation to the Respondent and requested it to conduct
a new search for personal data relating to the Data Subject. The DPC subsequently provided
the Data Subject with the Respondent’s response, wherein the Respondent confirmed that it
could still not locate any personal data processed about the Data Subject, other than in
connection with their request. The Respondent provided the DPC with information regarding
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its deletion policy of inactive accounts, which the DPC provided to the Data Subject. The
Respondent noted that the Data Subject had suggested in previous correspondence that they
did not agree to their updated Terms of Service in 2018 to continue using its application, and
that, on that basis, it was likely the account data of the Data Subject was deleted sometime
after May 2018, due to inactivity.
10. The DPC’s own violation inquiry commenced on 10 December 2018 and it examined whether
the Respondent had discharged its GDPR transparency obligations with regard to the provision
of information and the transparency of that information to both users and non-users of its
service. This included information provided to data subjects about the processing of
information between the Respondent and other Facebook companies. Following a lengthy
and comprehensive investigation, and consultation with all Concerned Supervisory
Authorities (CSAs) under Article 60 and 65, the DPC imposed a fine of €225 million on the
Respondent and a reprimand along with an order for the Respondent to bring its processing
into compliance by taking a range of specified remedial actions. In its communication the DPC
enquired whether the information provided by the DPC and the conclusion of the inquiry
resolved their complaint.
11. In the circumstances, the DPC asked the Data Subject to notify it, within two months, if they
were not satisfied with the outcome, so that the DPC could take further action. The DPC did
not receive any further communication from the Data Subject and, accordingly, the complaint
has been deemed to have been amicably resolved.
12. On 12 April 2022, and in light of the foregoing, the DPC wrote to the Recipient SA noting that
the DPC considered the complaint to have been amicably resolved and withdrawn in
accordance with section 109(3) of the Act and that it would conclude the case and inform the
Respondent.
13. In circumstances where the subject matter of the complaint has been amicably resolved, in
full, the complaint, by virtue of Section 109(3) of the 2018 Act, is deemed to have been
withdrawn by the Data Subject.
Confirmation of Outcome
14. For the purpose of Document 06/2022, the DPC confirms that:
a. The complaint, in its entirety, has been amicably resolved between the parties
concerned;
b. The agreed resolution is such that the object of the complaint no longer exists; and
c. Having consulted with the supervisory authorities concerned on the information set
out above, as required by Document 06/2022 the DPC has now closed off its file in
this matter.
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15. If dissatisfied with the outcome recorded herein, the parties have the right to an effective
remedy by way of an application for judicial review, by the Irish High Court, of the process
applied by the DPC in the context of the within complaint.
Signed for and on behalf of the DPC:
_____________________________
Deputy Commissioner
Data Protection Commission
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