In the matter of the General Data Protection Regulation
DPC Complaint Reference:
IMI Reference:
In the matter of a complaint, lodged by with the Bayerisches Landesamt für
Datenschutzaufsicht (Bavarian DPA) pursuant to Article 77 of the General Data Protection
Regulation, concerning Microsoft Ireland Operations 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 ON 12 MAY 2022)
Dated the 12th day of January 2024
Data Protection Commission
21 Fitzwilliam Square South
Dublin 2, Ireland
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Background
1. On 09 June 2022, (“the Data Subject”) lodged a complaint pursuant to
Article 77 of the GDPR with the Bayerisches Landesamt für Datenschutzaufsicht (“the
Recipient SA”) concerning Microsoft Ireland Operations 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) of the GDPR, the Recipient SA transferred
the complaint to the DPC on 15 September 2022.
The Complaint
3. The details of the complaint were as follows:
a. The Data Subject first raised their issue with the Respondent in June 2022, in relation
to the “Microsoft Family” feature within their Microsoft account – specifically the
family location feature. In this regard, the Data Subject noted that additional data
related to their travel behaviour was recorded under their recent activities on the
profile, to which the Data Subject remarked that they had not activated within their
Microsoft account. As such, the Data Subject lodged a request for the erasure of the
collected data, along with a request for the Respondent to cease the processing of
this data.
b. On 6 July 2022, the Respondent replied to the Data Subject, noting that any data
related to road safety and travel behaviour was only stored for a period of 14 days,
and then deleted. In this same correspondence, the Respondent also provided
information in respect of how the Data Subject could change their preferences on the
account going forward.
c. As the Data Subject was not satisfied with the response received from the
Respondent, they lodged a complaint with the Recipient SA.
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
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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:
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. The DPC first engaged with the Respondent on 16
December 2022. In its initial response of 5 January 2023, the Respondent confirmed:
a. That driving data is only retained for 14 days and is then automatically removed from
its systems. Further, the Respondent noted that it had no data pertaining to the Data
Subject on its systems.
b. That it would attempt to reproduce the specific scenario as experienced by the Data
Subject, to understand if there was a bug in the system, so that it could confirm
whether certain filters were set to ‘on’ by default, without requiring the Data Subject
to enable them.
i. In later correspondence of 25 February and 1 December 2023 respectively,
the Respondent noted to the DPC that its test of the scenario described above
confirmed that certain user filters were pre-set to ‘on’, and that internal
updates to the app were being introduced, to improve the privacy user
experiences within the app. The Respondent also confirmed that the updates
to the app, that were rolled out to production on 23 March 2023, consisted
of a new collection of consent for users who had the Drive Safety feature
enabled by default, and this was to prevent the feature from being
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automatically enabled. The Respondent also noted that it could not confirm
whether the Data Subject had previously enabled these filters.
c. In the circumstances, the Respondent also offered an apology to the Data Subject, as
well as a gesture of goodwill.
8. On foot of this correspondence from the Respondent, the DPC wrote to the Data Subject, via
the Recipient SA, to see if this would lead to the amicable resolution of their complaint. The
DPC’s letter issued to the Recipient SA on 23 March 2023, and this in turn was provided to the
Data Subject on 27 March 2023. When doing so, the DPC asked the Data Subject to notify it,
within a stated timeframe, if they were not satisfied, so that the DPC could take further action.
9. On 3 April 2023, the DPC received confirmation via the Recipient SA that the Data Subject was
agreeable to the amicable resolution proposal in question. The DPC thereafter engaged with
the Respondent to ensure that the gesture of goodwill as offered was completed.
10. On 5 September 2023, the DPC wrote to the Data Subject via the Recipient SA, confirming that
the agreed amicable resolution proposal had been carried out, attaching evidence of same to
the correspondence. This thereafter issued to the Data Subject on 6 September 2023.
11. On 18 October 2023, 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. On 24 October 2023, the Recipient SA confirmed receipt of the DPC
correspondence, which had advised that the complaint was deemed withdrawn.
12. 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
13. 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.
14. 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.
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Signed for and on behalf of the DPC:
_____________________________
Deputy Commissioner
Data Protection Commission
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