INDEMNIFICATION OF A TEEFÓNICA OPERATOR FOR INCLUDING A CUSTOMER IN A LIST OF PAYMENTS
On March 23, 2018, the First Civil Chamber of the Supreme Court sentenced a debt claim company to compensate with 10,000 euros for moral damages to a woman whose data it included in two records of defaulters for uA debt of 297 euros that Vodafone claimed from her in relation to mobile phone services, and with which she disagreed, since this was a violation of her right to honor. The consumer affected in the case under trial went to request a credit card from Banco Popular and was denied because it was included in a delinquent file. This motivated him to file the corresponding claim, which was upheld at first instance but was dismissed by the Oviedo Court. Finally, the Supreme Court (rapporteur Rafael Saraza) has agreed with him, condemning compensation by applying the Principle of data quality, which implies the inadmissibility of including personal data related to alleged doubtful debtors in the delinquent records. The Supreme Court emphasizes that it is not possible to include in this type of file those who "legitimately disagree with the creditor regarding the existence and amount of the debt", as occurred in this case.
The “data quality principle” means that data must be accurate, adequate, relevant and proportionate for the purposes for which it was collected and processed. As the STS of March 23, 2018 analyzed today, the art. 4 of the Organic Law on the Protection of Personal Data (hereinafter, LOPD), by developing both art. 18.4 of the Constitution as the standards of Convention no. 108 of the Council of Europe and Directive 1995/46/CE, of October 24, of the European Parliament and of the Council of the European Union, on the protection of natural persons with regard to the processing of personal data and the free movement of these data, requires that the personal data collected for its treatment be adequate, pertinent and not excessive in relation to the scope and the specific, explicit and legitimate purposes for which they have been obtained, accurate and updated in a way that responds truthfully to the current situation of the affected party, and prohibits their use for purposes incompatible with those for which the data had been collected.
The quality of the data does not only refer to its veracity, a mobile phone debt can be true and exact for a mobile phone company, but if the debt is controversial, because the owner of the data legitimately considers that it should not what is claimed, the lack of payment is not indicative of the insolvency of the affected party and, therefore, in this case, like the defendant, inclusion in a delinquent file is undue and compensable by way of the right to honour. Let us not forget that the purpose of the automated file is not the simple verification of the debts, but the patrimonial solvency of those affected
In the Judgment under study, individuals are not required to have the same professionalism and exhaustiveness in their relations with companies as is required of them, as a result of their professionalism and regularity in commercial traffic. Therefore, if the consumer proves that he has claimed the amount claimed, showing his disagreement, without prejudice to the right that the company has to claim his payment, such credit cannot give rise to the inclusion of the client's data in a register of defaulters. , given the serious consequences that such inclusion has for the moral and patrimonial sphere of the person affected by said data processing. And precisely those consequences are what have given rise to compensation to the consumer for having been included in the delinquent file.
As is the case with mobile telephony, it is not the company itself that claims these amounts due and not peaceful, but they assign their credit to other companies that are dedicated to including consumers in the delinquent files. In this case, the Supreme Court also expressly resolves that said assignment of credit does not protect the inclusion in the file of defaulters, and that the assignee company must make sure that the credit is truthful and peaceful, not being able to protect itself in the assignment to act illegally. .