Responsible for the file sentenced for unlawful interference with the right to honor

derecho al honor

Responsible for the file can not simply follow the instructions of the creditor, without assessing the request for cancellation or rectification by the debtor

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 The Civil Chamber of the Supreme Court, in Case 19 February 2020, with No Resolution 115/2020,  He confirmed the sentence to Equifax Ibérica, S.L., by illegitimate interference in the derecho al honor of the debtor.

Equifax, it included a fichero de morosos, following the instructions of Vodafone, although they had requested cancellation.

Equifax, it included a fichero de morosos, following the instructions of Vodafone, although they had requested cancellation.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

D data. Gonzalo were registered in the file of weak ASNEF, Managed by the Equifax Ibérica, S.L., for a debt of 609,26 €, fixed unilaterally by Vodafone, which was not recognized by the applicant.

D. Gonzalo asked downward Vodafone day 3 February 2012, repeated day 10 and 16 April following.

Always he considered that the billing was incorrect Vodafone, as it was claimed in bill 15 May 2012 the sum of 16,32 euros for the period 15/04/2012 a 14/04/2012 plus 500 euros, not corresponding with any service D. Gonzalo had contracted with said telephone company.

Debt is claimed 10 July 2012.

D. Gonzalo send a burofax in date 19 July 2012, stating that it did not recognize the debt and would not be included in any fichero de morosos.

On date 28 July 2012, Equifax informed D. Gonzalo their data had been incorporated into the ASNEF file by debt declared by Vodafone. It had been included even though the debt was controversial.  

The 1 August 2012, It underwent a payment before registration include him in delinquent "Badexcug".

The 30 August 2012, D. Gonzalo requested that their personal data will be deleted from the file at Equifax.

Equifax proceeded downward interim in the file ASNEF 31 August 2012, communicated by letter dated 7 September 2012.

D. Gonzalo knew they had grown to include their personal data in the file when he applied for a loan to La Caixa in December 2012, and he reiterated its request for withdrawal to the defendant.

The defendant replied to the request for withdrawal indicating that the cancellation was impossible because Vodafone had indicated that debt remained unpaid € 609.26.

A D. Gonzalo he was denied a credit card by CaixaBank "After analyzing your application and compare the information available and the financial valuation criteria applied by Caixacard", in date 23 November 2016.

The question to be resolved was whether so after the second inclusion, When he asked cancellation, Equifax or not acted diligently.

D. Gonzalo filed suit against Equifax in bringing proceedings to be declared the unlawful interference with the right to honor and be indemnified for moral damages resulting from such interference and property damage caused by the improper inclusion of personal data in the file of defaulters.

Primera Instancia

The Court of First Instance No. 53 Madrid gave judgment on 12 January 2018, estimating the lawsuit filed by D. Gonzalo, by Equifax trespass on the right to the honor of the plaintiff, condemning him to pay compensation for moral and property damages.

The Court considered that the data were included uncredited debt or make it.

Provincial Court

Equifax appealed.

20th Section of the Provincial Court of Madrid ruled on date 22 October 2018, dismissing the appeal.

Brought up the STS 174/2018, He is expressing that "There is no place in the records of delinquent personal data because of uncertain debts, dudosas, no pacíficas o sometidas a litigio. Which contributes to this circumstance into debt, excluding the justification for the inclusion of personal data in the register of defaulters, just a principle of documentary evidence that contradicts their existence or completeness appear. "

For Hearing, Equifax, in the second cancellation request by D. Gonzalo, He did not meet the requirements of the Data Protection Act and repealed 1999, nor regulated by Royal Decree 1720/2000, of 21 December, so yes there was unlawful interference with the right to the honor of the plaintiff.

The STS 2040/2014, of 21 May, He established that “(…) Equifax is not a mere charge of data processing, (…) is responsible for the Asnef file and processing data included therein under the terms of art. 2.d of the Directive and 3.d LOPD.

(…) The art. 6.2 de la Directiva establece quecorresponderá a los responsables del tratamiento garantizar (…) that the data are suitable, relevant and not excessive, that are accurate and that all reasonable steps to ensure that inaccurate or incomplete are erased or rectified taken.

(…) As stated in the recent judgment of the Court of Justice of the European Union of 13 May 2014, case C 131/12 , in paragraph 77, “el interesado puede dirigir las solicitudes con arreglo a los artículos 12, letra b ), and 14, first paragraph, letra a), of laDirective 95/46 directly responsible for treatment, which must then properly examine its foundation and, if, poner fin al tratamiento de los datos controvertidos”.

(…) Equifax has fully to comply with the exercise by those concerned of the rights of rectification and erasure, cuando (…) This can be done based on a reasoned application justified. You can not simply follow the instructions of the creditor who provided the data, It must make its own assessment of the exercise of the right of correction or cancellation by the affected, and give an answer founded. Otherwise involve an unjustified restriction on the right to data protection stakeholders whose data are included in a register of those under theart. 29.2  steal. (…)”

Supreme Court

Equifax appealed, articulated on two grounds.

  • first plea: legal rules infringed, the articles 7.7 and 2 of the Organic Law 1/1982.
  • second reason: legal provision infringed, Article 43 of Regulation Development LOPD.

In this case, the Prosecutor challenged both reasons.

The Civil Chamber of the Supreme Court considered it appropriate to solve both reasons together, dismissing them.

For this, He highlighted by the foregoing STS 614/2018, of 7 November:

“(…) Once the person exercising the right to modify or cancel before the responsible for the registration of defaulters, if the claim is performed and documented manner justified, responsible for this file must satisfy this right under the terms provided in theart. 16steal. You can not simply transfer the request to the creditor, for decision, and uncritically follow the instructions in this, giving a standardized response to the affected who denies the cancellation is made by Equifax. "

For the Board, Equifax, in the second phase including data, He did not act with due diligence, just because he merely follow signs for Vodafone and maintain data D. Gonzalo in the register of defaulters, although he asked for reasoned and justified cancellation, violating their fundamental right to honor.

Conclusion

It is the duty of those responsible for the files of defaulters, Not only examine the requests come to them inclusion of personal data in those files, but also give an answer based on well-founded or not character of the same, not limited to ask the creditor and to follow his instructions. Must respond founded the legitimate exercise of the right of correction and cancellation by the applicant, because the erroneous inclusion can cause violation of fundamental rights, causing moral and property damages.

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