Article 3.a of the Organic Law on the Protection of Personal Data (“LOPD”) defines data of a personal nature as “any information pertaining to individual persons identified or identifiable.”
In light of the above, we proceed to comment on the recent judgment 4686/2015 by the Supreme Court, of November 12th, in which a subcontractor company of Telefónica was sentenced to compensate a former worker with 30,000 Euro as a result of having communicated the grounds for the dismissal of the former worker to Telefónica.
In this particular case, the company dismissed the worker in 2009 for allegedly billing a customer with 100 Euro for an operation that should have been free. This fact was not proven in the procedure following the dismissal and, for that reason, the dismissal was declared as unfair.
It turned out that the worker, during the selection process for a new job post in the telephone sector, discovered that his name was on a “black list” of Telefónica, which listed names of people banned by the company for disruptive behaviour. For such reason, he was ruled out of the selection process.
Given the above, the worker filed a lawsuit against his former employer claiming the infringement of his right to honour as well as the right to the protection of personal information, as a result of the communication with Telefónica regarding the grounds for which his dismissal by his former employer were based upon.
Owing to the worker’s difficulties in proving that his former employer had indeed communicated his personal information to Telefónica, the Supreme Court, by facility of proof, proceeded to invert the burden of proof, as it held that the company should have proved that it did not report the dismissed worker’s personal information.
Lacking such evidence, the Supreme Court accepted that said personal information had been reported, and regarded the said report as unlawful, (i) for not gaining the plaintiff’s consent and for said transfer not being protected by some of the exceptions established in the LOPD under which such consent is not required, (ii) for not having respected the data quality principle because the reported information was not accurate (we may recall that the dismissal was declared unfair), and (iii) for not granting the plaintiff with the possibility of exercising rights of access, rectification, cancelation, and opposition, regulated in the LOPD.
As a result of the foregoing, the Supreme Court likewise perceived that the infringement of the data protection regulation violated in turn the plaintiff’s right to honour, given that the information reported was not accurate and this negatively affected his reputation, sentencing the defendant to pay a compensation of 30,000 Euro.
Vilá Abogados
For more information, please contact:
4th December 2015
