Contact
Result of the resolution: Set aside/dismissed
RESOLUTION OF PREVIOUS INFORMATION ARCHIVE no. 133/2009, referring to Catalunya Ràdio SRG, SA.
Antecedents
First.- On 10/15/09, a letter from a citizen dated 09/10/09 entered into this Agency, by which he formulated a complaint against Catalunya Ràdio, Servei de Radiofusió de la Generalitat, SA (in Forward, Catalunya Ràdio); The Social Court number 1 of Girona; And the Press Office of the High Court of Justice of Catalonia (hereafter, TSJC), on the occasion of a presumed breach of the regulations governing the protection of personal data.
In particular, the complainant explained that on 04/06/09, Catalunya Ràdio would have issued a new referent to his person, and specifically, in relation to the full content of a ruling issued on 04/17/09 by Court of Social number 1 of Girona, which presumably would have been facilitated by the communication referred to by the same Court or the Press Office of the TSJC, all without its consent, which is why the complainant requests compensation For the damages suffered of € 122.351,76.
The complainant provided the following documentation:
* CD with the recordings of two news bulletins of Catalunya Ràdio of 04/06/09 that echoed the aforementioned sentence.
* Copy of three writings addressed to the Social Court no. 1 of Girona of dates 05/06/09 -the first- and 06/16/09 - the last two.
* Copy of the due diligence and ordering of the Judgment referred to on 06/25/09, by which a certification issued on 06/08/09 by the secretary of this Court was attached.
* Copy of two writs of dates 06/05/09 and 07/29/09, addressed to the Press Office of the TSJC.
* Copy of the notary's file of 09/06/09 of simple remission by mail of a letter of 08/06/09 to Catalunya Ràdio, as well as the documentation supporting the sending thereof.
* Copy of several press clippings.
* Copy of the writing of 07/27/09 addressed to the College of Journalists of Girona and response from the Official Association of Journalists of Catalonia dated 9/16/09, as well as a copy of the writing of the same Col Law addressed to the Information Council Foundation of Catalonia on 09/16/09, by which the complaint made by the complainant was sent.
* Copy of the writing of 07/27/09 addressed to the Audiovisual Council of Catalonia and response thereto dated 09/09/09.
* Written by the Consell de la Informació de Catalunya Foundation on 01/10/2009.
* Copy of the payrolls for September 2009 of the complainant and his wife.
Second.- The Catalan Data Protection Agency initiated a preliminary information phase in accordance with the provisions of article 7 of Decree 278/1993, of 9 November, on the sanctioning procedure for application in the fields Of competence of the Generalitat, in relation to article 17 of Law 5/2002, of April 19, of the Catalan Agency for Data Protection, in order to verify the reality of the reported events and to obtain more Information on the circumstances of the facts and the responsible subjects.
Third.- Within this phase and given that the facts denounced regarding the Court of Social number 1 of Girona and the Press Office of the TSJC, were not included in the cases on which the Catalan Agency for Protection Of Data in accordance with article 156 of the Statute of Autonomy of Catalonia and with article 3 of Law 5/2002, of April 19, of the Catalan Agency for the Protection of Data, by means of writing Of 12/11/09 the actions related to both entities denounced to the Spanish Data Protection Agency, organization that resolved the file of the complaint, were transferred based on the lack of indications on the origin of the Leak of the Sentence broadcast by Catalunya Ràdio, taking into account the diversity of parties that intervened in the judicial process and therefore that they had access to the Judgment.
Fundamentals of Law
First.- It is competent to dictate this Resolution the director of the Catalan Data Protection Agency, in accordance with article 2 of Decree 278/1993, of November 9, on the sanctioning procedure applicable to the areas of Competition of the Generalitat, in relation to article 5 of Law 5/2002, of April 19, of the Catalan Agency for Data Protection, and article 15 of Decree 48/2003, of February 20 , Which approves the Statute of the Catalan Agency for Data Protection.
During the processing of these previous information actions, the Law 32/2010, of October 1, of the Catalan Data Protection Authority, in force since 10/28/2010, has been approved. Of which the Catalan Data Protection Authority is subrogated in the legal position of the Catalan Data Protection Agency (DT 1a). Although the entry into force of this Law does not affect the resolution that is adopted here, mention is made since at the time the resolution was issued, the Authority has been subrogated to the position of The agency
Second.- Previously, it is necessary to pronounce in relation to the indemnifying claim of the complainant.
In this respect, article 19 of the LOPD concerning the right to compensation provides as follows:
"1. Those interested who, as a result of the breach of the provisions of this Law by the person responsible or the person in charge of the treatment, suffer damage or injury to their property or rights, have the right to be compensated.
2. In the case of files of public ownership, the responsibility is required in accordance with the regulatory legislation of the regime of responsibility of the public administrations.
3. In the case of files of private ownership, the action must be exercised before the organs of the ordinary jurisdiction. "
In this regard, the pronouncements derived from the ruling of the Supreme Court dated 12/28/04, which includes the argumentation of the ruling of the National Court of 03/21/01, is of interest:
"(...) and this is because the legal situation of the complainant-appellants does not benefit from the fact that the Banking Entity is punished, which is the only statement that could be made by the Data Protection Agency, since Compensation claim articulated by the actors can not be served by the Data Protection Agency, but should, where appropriate, be appealed to the bodies of the civil jurisdiction by means of the relevant procedural channels, nor does the prosperity of such claim fall Contingent or conditional upon the imposition of a prior sanction on the accused. ""
In effect, it does not correspond to this Authority to pronounce on the compensation claim, since such action must be exercised by the person affected before the bodies referred to in article 19 of the LOPD.
Third.- Having said the previous one and from the story of facts that has been exposed in the section of backgrounds, in the first place, it is necessary to analyze if the broadcast made by Catalunya Ràdio through the news bulletins can be considered a cession or Communication of personal data.
In this regard, the first thing to be clarified is whether the information contained contained personal data, as well as determining whether they were subject to treatment.
First of all, it should be noted that article 5.1 of Royal Decree 1720/2007, of December 21, which approves the Regulation for the implementation of Organic Law 15/1999, of December 13, on the protection of personal data (Hereinafter, RLOPD and LOPD, respectively), in its letter f) and in accordance with the provisions in article 3 a) LOPD, defines the concept "personal data" in the following way:
"Any numerical, alphabetical, graphic, photographic, acoustic or any other information that concerns identified or identifiable physical persons".
Therefore, the data referring to the name and surname, workplace or circumstance related to the judicial process for harassment in which the person here denouncing was immersed, as well as the meaning of the same resolution, which were the object of Dissemination through the news bulletin of the mentioned station on 06/04/4 - and specifically, at 11 hours -, fully fit the concept of personal data, as they are data that contain "information Referring to an identified physical person ", notwithstanding that any of the mentioned data, also have the consideration of data referring to the privacy of the person.
Indeed, it should be noted the distinction between privacy and personal data, a difference that was already dealt with by the Constitutional Court in Sentence number 292/2000 of November 30, in the following terms:
"Finally, the right to privacy allows certain data to be excluded from a person's knowledge, for this reason, and this has been said by this Court (SSTC 134/1999, July 15, FJ 5, 144/1999, FJ 8, 98/2000 of 10 April, FJ 5, 115/2000 of 10 May, FJ 4), that is to say, the power to protect his private life from undesirable publicity. Guarantees to individuals a power of disposition on such data.This guarantee imposes on the public authorities the prohibition that they become sources of such information without due guarantees and also the duty to prevent risks that may arise from access or disclosure But that power of disposition over one's own personal data is of no avail if the person concerned does not know what information is held by third parties, who owns them, and for what purpose.
(...) the object of protection of the fundamental right to the protection of data is not limited only to the personal data of the person, but to any type of personal data, whether or not intimate, whose knowledge or employment by third parties may affect To their rights, whether fundamental or not, because their object is not only individual privacy, that for it is the protection that art. 18.1 EC grants, but personal data. Consequently, it also reaches those public personal data which, because of the fact
To be accessible to the knowledge of anyone, do not escape the power of disposition of the affected because this is guaranteed by their right to data protection. Also for that reason, the fact that the data is personal does not mean that only those related to the private or intimate life of the person are protected, but that the protected data are all those that identify or allow the identification of the person, being able to serve For the preparation of their ideological, racial, sexual, economic or other profile, or for any other use that in certain circumstances constitutes a threat to the individual.
But also the fundamental right to data protection (...) confers to the person the legal power to impose on third parties the duty to refrain from any intrusion into the intimate sphere of the person and the prohibition of making use of the well-known (...). "
Thus, in accordance with the constitutional doctrine set forth, although we should not confuse privacy with personal data, we are in both cases before fundamental rights that must be respected.
On the other hand, it is also appropriate to go to the definition of the concept "data processing", provided in Article 3 c) of the LOPD, and in a more detailed way in article 5.1 t) of the RLOPD, with The following wording:
"Any operation or technical procedure, whether automated or not, that allows the collection, recording, conservation, processing, modification, consultation, use, modification, cancellation, blocking or deletion, as well as the cessions of data resulting from communications , Queries, interconnections and transfers ".
Based on the foregoing, it is clear that the elaboration and dissemination of the news itself and the use of the aforementioned personal data constitute a processing of personal data.
In accordance with this premise, the dissemination of personal data, through the aforementioned communication medium, despite not having specific recipients, should be considered as a data communication within the meaning of article 11 of the LOPD. In this sense, article 3 i) LOPD defines assignment or communication of data such as "any disclosure of data made to a person other than the interested party."
Well, it is clear that with the dissemination through a means of communication of certain personal data referring to a particular person, a cession or communication of data in accordance with the data protection regulations would have been made.
Fourth.- In accordance with these premises, you must go to sections 1 and 2 of article 11 of the LOPD, a precept regulating the communication of data in the following terms:
"1. The personal data subject to the treatment can only be communicated to a third party for the fulfillment of purposes directly related to the legitimate functions of the assignor and the assignee with the prior consent of the interested party.
2. The consent required by the previous section is not necessary:
A) When the transfer is authorized in a law.
B) When it comes to data collected from sources accessible to the public.
C) When the treatment responds to the free and legitimate acceptance of a legal relationship whose development, compliance and control necessarily implies the connection of the mentioned treatment with files of third parties. In this case, the communication is only legitimate when it is limited to the purpose that justifies it.
D) When the communication that must be carried out, the Ombudsman, the fiscal ministry or the judges or tribunals or the Court of Auditors, in the exercise of the functions assigned to him, have as its addressee. Neither does the consent need when the communication has as a recipient autonomous institutions with similar functions to the Ombudsman or the Court of Auditors.
E) When the assignment occurs between public administrations and has as an object the subsequent treatment of the data for historical, statistical or scientific purposes.
F) When the transfer of personal data related to health is necessary to solve an urgency that requires access to a file or to carry out epidemiological studies in the terms established by the legislation on state or autonomous health. "
Based on what has been set forth here, we would be facing a transfer or communication of personal data that, when not having the consent of the person affected, would have to be resolved if it had a legal qualification that would allow the issuer to disseminate the Personal information of the complainant, in accordance with article 11.2 a) LOPD, previously transcribed.
In this regard, the Spanish Constitution recognizes the following rights in sections a) and d) of article 20.1:
"A) To express and spread freely the thoughts, the ideas and the opinions by means of the word, the writing or any other means of reproduction.
D) To communicate or to receive truthful information freely by any means of diffusion. The law shall regulate the right to the clause of conscience and professional secrecy in the exercise of these freedoms. "
Doncs bé, recalled the Constitutional Court in Sentence No. 14/2003, dated 28th of June, "the subjects who hold the freedom of information and the corresponding right to receive it are the community, each of its citizens and professionals in journalism. ".
In relation to the fundamental right to freedom of information, the same Court has ruled in Sentence 77/2009, of March 23, in the following sense:
"This Court has emphasized that the free exercise of the right to freedom of expression, as well as that of information, guarantees a relevant constitutional interest, such as the formation and existence of a free public opinion, which is a precondition and necessary for the Exercise of other rights inherent to the functioning of a democratic system, which has a constitutionally recognized limit on the right to honor of persons, which does not exclude criticism of the behavior of another, even if it is unconcerned and may annoy , To disquiet or displease the one to whom it is addressed, as pluralism, tolerance and the spirit of openness require it, without which there is no democratic society. They have also been indicated as circumstances to be taken into account when assessing the limits Of freedom of expression, the judgment on the public relevance of the matter, the type of intervention and, above all, the question of whether, in effect , Contribute or not to the formation of the public opinion, being influenced in that this limit weakens or loses weight in the weight to be realized when the holders of the honor exercise public functions or they are implicated in matters of public relevance, being in these cases more ample The limits of permissible criticism, because these people are exposed to a more rigorous control of their activities and manifestations than if they were simple individuals without any public projection.
This fundamental right to freedom of information may occasionally collide with the fundamental right to the protection of personal data, as in this case. In the face of this conflict, it is necessary to elucidate which of these two fundamental rights prevails, in accordance with the criteria established by the Constitutional Court.
In this respect, the Constitutional Court has been inclined to give a preferential position to the fundamental right to freedom of information in relation to other fundamental rights. Specifically, in Sentence 171/1990, of November 12, addressed the collision of the fundamental right to freedom of information with the right to privacy and honor in the following terms:
"Given its institutional function, when a collision of freedom of information with the right to privacy and honor takes place, it generally enjoys a preferential position and the restrictions that may arise from freedom of information in respect of freedom of information Be interpreted in such a way that the fundamental content of the right to information does not result, given its institutional hierarchy that has been denatured or incorrectly relativized (SSTC 106/1986 and 159/1986, among others).
If, when exercising the right to transmit information regarding facts or persons of public relevance, it acquires preeminence over the right to privacy and honor with which it may collide, it is bound to conclude that in that confrontation of rights, that of freedom Information, as a general rule, should prevail whenever the information transmitted is truthful, and refers to public affairs that are of general interest in the matters to which they refer, by the persons involved in them, thereby contributing to The formation of public opinion. In this case, the content of the right to free information "reaches its highest level of justifiable efficacy against the right to honor, which is proportionally weakened as an external limit of freedom of expression and information" (STC 107/1988, fj 2 ). "
Notwithstanding the foregoing, in the same Judgment the referred Court clarifies this prevalence, in the following sense:
"Such a preferential value, however, can not be defined as absolute, since, if it is recognized as a guarantee of public opinion, it can only legitimize interference with other fundamental rights that are consistent with that purpose, that is, relevant for The formation of public opinion on matters of general interest, lacking to that end legitimating, when the freedoms of expression and information are exercised in an exorbitant and exorbitant manner of the end in regard to which the Constitution grants him his preferential protection.
In turn, the same Constitutional Court, in relation to the limitations of the fundamental right to information in order to guarantee the effectiveness of other fundamental rights mentioned in article 20.4 CE, which include the privacy and Honor, he has established two essential requirements so that fundamental right first prevails over the second. Thus, in Sentence 148/2002, of July 15, in which the conflict was presented between the right to information and the right to honor, declared the following:
"As regards specifically the right to freely communicate information ... this Court has stated repeatedly that its legitimate exercise requires the concurrence of an essential requirement, namely the veracity of the information, The Constitution configures freedom of information as the right to communicate truthful information.This first requirement may sometimes add to the interest and public relevance of the information disclosed.In the absence of any of these requirements freedom of information is not constitutionally supported and , Therefore, its exercise may affect, to the detriment of one of the rights that, as a limit, is enunciated in Article 20.4 EC, in particular, and in this case, concerns the fundamental right to honor (SSTC 28/1996, of 16 Of February, FJ 3; 154/1999, of July 13, FJ 5). Hence, we have conditioned the constitutional protection of freedom of information, as opposed to Honor to the honor guaranteed in art. 18.1 EC, that the information be truthful and that it refers to facts with public relevance, in the sense of "news" (SSTC 138/1996, of September 16, FJ 3, 144/1998, of June 30, FJ 2, 21/2000, 31 January, FJ 4, 112/2000, 5 May, FJ 6, 76/2002, 8 April, FJ 3). (...)
A) The requirement of veracity of information has been understood from STC 6/1988, of January 21 (FJ 5), not as a requirement of a rigorous and total accuracy in the content of the information, so that they can To be exempt from any protection or constitutional guarantee of wrong or unproven information, but in the sense that it should be deprived of that protection or guarantee to those who, defrauding the right of all to receive truthful information, act negligently and irresponsibly when transmitting (SSTC 105/1990, 6 June, FJ 5, 171/1990, 12 November, FJ 8, 172/1990, 12 November, FJ 3). , 143/1991 of July 1, FJ 6, 197/1991, 17 October, FJ 2, 40/1992, 30 March, FJ 2, 85/1992, 8 June, FJ 4,240 / 1992, of 21 December, FJ 5). Therefore what the aforementioned requirement implies is that the informant, if he wants to be placed under the protection of art. 20.1 d) EC, has a special duty to verify the truth of the facts that it exposes through the appropriate investigations and using the due diligence.
However, the information may be inaccurate or erroneous, which can not be totally excluded, but "information that is correctly obtained and disseminated is worthy of protection (STC 6/1988, FJ 5), even if its total accuracy is controversial or (SSTC 171/1990, 12 November, FJ 8, 172/1990, 12 November, FJ 3, in the same sense, SSTC 240/1992, Of 21 December, FJ 5, 178/1993 of 31 May, FJ 5, 110/2000 of 5 May, FJ 8, 297/2000 of 11 December, FJ 9, 46/2002 of 25 Of February, FJ 6). (...)
B) As regards the public relevance of the manifestations made, it is not possible to ignore the framework in which the defendant intervened ... they are circumstances that give unquestionable public relevance to the manifestations made ".
Therefore, it is appropriate to determine whether the news broadcast by Catalunya Ràdio complies with the requirements of veracity and public relevance.
On the one hand and as regards the veracity of the news, the complainant understands that "The news contains several errors that seriously hurt me and, in general, all the news follows a lack of objectivity and knowledge regarding the interpretation and Effects of judicial decisions. It should be remembered that it is not a final ruling and that, therefore, it is subject to appeal (...). " Adding the complainant in his complaint paper that "The treatment of the same [news] with a clear sensationalist connotation seriously violates my right to honor, to privacy and to the image itself ..."
Previously, it should be said that it does not correspond to this Agency to comment on the presumed "sensationalist treatment" or "lack of objectivity" on the part of the entity denounced.
Having said the above, the information disseminated by Catalunya Ràdio should be considered truthful, in the sense that it reproduces the content of the Judgment dictated by the Social Court no. 1 of Girona, with the express mention that it was susceptible to appeal, that is, that it was not firm.
In this respect, although the complainant claims that the news contained "several errors", the fact is that the existence of these has not been credited to this Agency. It is also not surprising to note that according to the Constitutional Court Judgment No. 148/2002 - previously transposed in part -, this Court accepts the existence of inaccuracies or errors in the dissemination of a news, as long as they do not affect the essence of the information.
On the other hand, it is opportune to decide whether the disseminated facts had a certain public relevance, that is, if the facts were notable. Well, in this case the concurrence of this requirement can be recognized, given that, on the one hand, the subject matter is already relevant, and on the other hand, because in these events people are involved They developed public functions in a public work place.
In short, given that the news broadcast by Catalunya Ràdio would comply with the requirements of veracity and public relevance, it seems pertinent to consider that the requisites required by the constitutional doctrine are given in order to prevail the fundamental right to freedom of information regarding Fundamental right to the protection of personal data.
Fifth.- Apart from what has already been said, this Authority considers it necessary to carry out a series of considerations that the media should take into account in the dissemination of personal data.
Although in the present case, it is possible to admit the prevalence of the fundamental right to freedom of information, considers this Authority that in cases like the present where the dissemination of the news implies a processing of personal data, the medium Of communication should assess whether the fundamental right to freedom of information can be made equally effective without this having any effect on the fundamental right to the protection of personal data, for example, omitting the name and surname of the Person here denouncing, conduct that Catalunya Ràdio - subsequently - adopted in the news bulletin from 2:30 p.m. to 04/06/09, using the expression "the worker" to refer to The person here denouncing
That is why this Authority recommends to Catalunya Ràdio that, prior to the dissemination of a news item, analyze the need to publish certain personal data that allow identifiable individuals to be made visible, taking into account the notoriety or public relevance Of the affected person.
Likewise, it is not excessive to remember that in accordance with article 3 j) LOPD, the media are considered as sources accessible to the public, which means that once personal data has been disclosed in these Means, third parties can treat them without the consent of the people affected, which is why the aforementioned reflection is even more necessary.
Six.- In essence, the prevalence of the fundamental right to freedom of information regarding the fundamental right to the protection of personal data is confirmed in the present procedure, since, as stated above, the information disseminated complied with the requirements Of veracity and public relevance.
Article 10.2 of Decree 278/1993, of November 9, on the sanctioning procedure applicable to the areas of competence of the Generalitat, provides that:
"(...) no statement of charges will be made and the removal of the file and the file of the proceedings will be ordered when the proceedings and the tests carried out do not guarantee the absence of an offense or liability. This resolution will be notified to the interested parties ".
In accordance with the foregoing, and since it has not been proved during the present information the existence of rational indications that allow to attribute any fact that could constitute one of the infractions provided for in the LOPD, It is appropriate to agree to the archive of these previous information actions, while no more elements are available that allow the attribution of a fact that constitutes an infringement.
For all this,
RESOLC
First.- Filed the actions of previous information number 133/2009, regarding the Catalunya Ràdio SRG, SA.
Second.- Notify this Resolution in Catalunya Ràdio SRG, SA and the complainant.
Against this resolution, which ends the administrative procedure in accordance with article 14.3 of Decree 48/2003, of February 20, which approves the Statute of the Catalan Agency for the Protection of Data, the parties Interested parties may, alternatively, submit a request for reversal before the Director of the Catalan Data Protection Agency within one month from the day after notification, in accordance with the provisions of the Article 116 and following of Law 30/1992 or directly bring an administrative contentious appeal before the Administrative Contentious Courts, within two months from the day after its notification, in accordance with articles 8, 14 and 46 of Law 29/1998, of July 13, regulating the contentious administrative jurisdiction.
Similarly, interested parties may submit any other appeal they deem appropriate for the defense of their interests.
The director
Esther Mitjans Perelló
Barcelona, November 5, 2010
Carrer de la Llacuna, 166, 7a. Plant
08018 Barcelona
Page 2 of 2
Antecedents
First.- On 10/15/09, a letter from a citizen dated 09/10/09 entered into this Agency, by which he formulated a complaint against Catalunya Ràdio, Servei de Radiofusió de la Generalitat, SA (in Forward, Catalunya Ràdio); The Social Court number 1 of Girona; And the Press Office of the High Court of Justice of Catalonia (hereafter, TSJC), on the occasion of a presumed breach of the regulations governing the protection of personal data.
In particular, the complainant explained that on 04/06/09, Catalunya Ràdio would have issued a new referent to his person, and specifically, in relation to the full content of a ruling issued on 04/17/09 by Court of Social number 1 of Girona, which presumably would have been facilitated by the communication referred to by the same Court or the Press Office of the TSJC, all without its consent, which is why the complainant requests compensation For the damages suffered of € 122.351,76.
The complainant provided the following documentation:
* CD with the recordings of two news bulletins of Catalunya Ràdio of 04/06/09 that echoed the aforementioned sentence.
* Copy of three writings addressed to the Social Court no. 1 of Girona of dates 05/06/09 -the first- and 06/16/09 - the last two.
* Copy of the due diligence and ordering of the Judgment referred to on 06/25/09, by which a certification issued on 06/08/09 by the secretary of this Court was attached.
* Copy of two writs of dates 06/05/09 and 07/29/09, addressed to the Press Office of the TSJC.
* Copy of the notary's file of 09/06/09 of simple remission by mail of a letter of 08/06/09 to Catalunya Ràdio, as well as the documentation supporting the sending thereof.
* Copy of several press clippings.
* Copy of the writing of 07/27/09 addressed to the College of Journalists of Girona and response from the Official Association of Journalists of Catalonia dated 9/16/09, as well as a copy of the writing of the same Col Law addressed to the Information Council Foundation of Catalonia on 09/16/09, by which the complaint made by the complainant was sent.
* Copy of the writing of 07/27/09 addressed to the Audiovisual Council of Catalonia and response thereto dated 09/09/09.
* Written by the Consell de la Informació de Catalunya Foundation on 01/10/2009.
* Copy of the payrolls for September 2009 of the complainant and his wife.
Second.- The Catalan Data Protection Agency initiated a preliminary information phase in accordance with the provisions of article 7 of Decree 278/1993, of 9 November, on the sanctioning procedure for application in the fields Of competence of the Generalitat, in relation to article 17 of Law 5/2002, of April 19, of the Catalan Agency for Data Protection, in order to verify the reality of the reported events and to obtain more Information on the circumstances of the facts and the responsible subjects.
Third.- Within this phase and given that the facts denounced regarding the Court of Social number 1 of Girona and the Press Office of the TSJC, were not included in the cases on which the Catalan Agency for Protection Of Data in accordance with article 156 of the Statute of Autonomy of Catalonia and with article 3 of Law 5/2002, of April 19, of the Catalan Agency for the Protection of Data, by means of writing Of 12/11/09 the actions related to both entities denounced to the Spanish Data Protection Agency, organization that resolved the file of the complaint, were transferred based on the lack of indications on the origin of the Leak of the Sentence broadcast by Catalunya Ràdio, taking into account the diversity of parties that intervened in the judicial process and therefore that they had access to the Judgment.
Fundamentals of Law
First.- It is competent to dictate this Resolution the director of the Catalan Data Protection Agency, in accordance with article 2 of Decree 278/1993, of November 9, on the sanctioning procedure applicable to the areas of Competition of the Generalitat, in relation to article 5 of Law 5/2002, of April 19, of the Catalan Agency for Data Protection, and article 15 of Decree 48/2003, of February 20 , Which approves the Statute of the Catalan Agency for Data Protection.
During the processing of these previous information actions, the Law 32/2010, of October 1, of the Catalan Data Protection Authority, in force since 10/28/2010, has been approved. Of which the Catalan Data Protection Authority is subrogated in the legal position of the Catalan Data Protection Agency (DT 1a). Although the entry into force of this Law does not affect the resolution that is adopted here, mention is made since at the time the resolution was issued, the Authority has been subrogated to the position of The agency
Second.- Previously, it is necessary to pronounce in relation to the indemnifying claim of the complainant.
In this respect, article 19 of the LOPD concerning the right to compensation provides as follows:
"1. Those interested who, as a result of the breach of the provisions of this Law by the person responsible or the person in charge of the treatment, suffer damage or injury to their property or rights, have the right to be compensated.
2. In the case of files of public ownership, the responsibility is required in accordance with the regulatory legislation of the regime of responsibility of the public administrations.
3. In the case of files of private ownership, the action must be exercised before the organs of the ordinary jurisdiction. "
In this regard, the pronouncements derived from the ruling of the Supreme Court dated 12/28/04, which includes the argumentation of the ruling of the National Court of 03/21/01, is of interest:
"(...) and this is because the legal situation of the complainant-appellants does not benefit from the fact that the Banking Entity is punished, which is the only statement that could be made by the Data Protection Agency, since Compensation claim articulated by the actors can not be served by the Data Protection Agency, but should, where appropriate, be appealed to the bodies of the civil jurisdiction by means of the relevant procedural channels, nor does the prosperity of such claim fall Contingent or conditional upon the imposition of a prior sanction on the accused. ""
In effect, it does not correspond to this Authority to pronounce on the compensation claim, since such action must be exercised by the person affected before the bodies referred to in article 19 of the LOPD.
Third.- Having said the previous one and from the story of facts that has been exposed in the section of backgrounds, in the first place, it is necessary to analyze if the broadcast made by Catalunya Ràdio through the news bulletins can be considered a cession or Communication of personal data.
In this regard, the first thing to be clarified is whether the information contained contained personal data, as well as determining whether they were subject to treatment.
First of all, it should be noted that article 5.1 of Royal Decree 1720/2007, of December 21, which approves the Regulation for the implementation of Organic Law 15/1999, of December 13, on the protection of personal data (Hereinafter, RLOPD and LOPD, respectively), in its letter f) and in accordance with the provisions in article 3 a) LOPD, defines the concept "personal data" in the following way:
"Any numerical, alphabetical, graphic, photographic, acoustic or any other information that concerns identified or identifiable physical persons".
Therefore, the data referring to the name and surname, workplace or circumstance related to the judicial process for harassment in which the person here denouncing was immersed, as well as the meaning of the same resolution, which were the object of Dissemination through the news bulletin of the mentioned station on 06/04/4 - and specifically, at 11 hours -, fully fit the concept of personal data, as they are data that contain "information Referring to an identified physical person ", notwithstanding that any of the mentioned data, also have the consideration of data referring to the privacy of the person.
Indeed, it should be noted the distinction between privacy and personal data, a difference that was already dealt with by the Constitutional Court in Sentence number 292/2000 of November 30, in the following terms:
"Finally, the right to privacy allows certain data to be excluded from a person's knowledge, for this reason, and this has been said by this Court (SSTC 134/1999, July 15, FJ 5, 144/1999, FJ 8, 98/2000 of 10 April, FJ 5, 115/2000 of 10 May, FJ 4), that is to say, the power to protect his private life from undesirable publicity. Guarantees to individuals a power of disposition on such data.This guarantee imposes on the public authorities the prohibition that they become sources of such information without due guarantees and also the duty to prevent risks that may arise from access or disclosure But that power of disposition over one's own personal data is of no avail if the person concerned does not know what information is held by third parties, who owns them, and for what purpose.
(...) the object of protection of the fundamental right to the protection of data is not limited only to the personal data of the person, but to any type of personal data, whether or not intimate, whose knowledge or employment by third parties may affect To their rights, whether fundamental or not, because their object is not only individual privacy, that for it is the protection that art. 18.1 EC grants, but personal data. Consequently, it also reaches those public personal data which, because of the fact
To be accessible to the knowledge of anyone, do not escape the power of disposition of the affected because this is guaranteed by their right to data protection. Also for that reason, the fact that the data is personal does not mean that only those related to the private or intimate life of the person are protected, but that the protected data are all those that identify or allow the identification of the person, being able to serve For the preparation of their ideological, racial, sexual, economic or other profile, or for any other use that in certain circumstances constitutes a threat to the individual.
But also the fundamental right to data protection (...) confers to the person the legal power to impose on third parties the duty to refrain from any intrusion into the intimate sphere of the person and the prohibition of making use of the well-known (...). "
Thus, in accordance with the constitutional doctrine set forth, although we should not confuse privacy with personal data, we are in both cases before fundamental rights that must be respected.
On the other hand, it is also appropriate to go to the definition of the concept "data processing", provided in Article 3 c) of the LOPD, and in a more detailed way in article 5.1 t) of the RLOPD, with The following wording:
"Any operation or technical procedure, whether automated or not, that allows the collection, recording, conservation, processing, modification, consultation, use, modification, cancellation, blocking or deletion, as well as the cessions of data resulting from communications , Queries, interconnections and transfers ".
Based on the foregoing, it is clear that the elaboration and dissemination of the news itself and the use of the aforementioned personal data constitute a processing of personal data.
In accordance with this premise, the dissemination of personal data, through the aforementioned communication medium, despite not having specific recipients, should be considered as a data communication within the meaning of article 11 of the LOPD. In this sense, article 3 i) LOPD defines assignment or communication of data such as "any disclosure of data made to a person other than the interested party."
Well, it is clear that with the dissemination through a means of communication of certain personal data referring to a particular person, a cession or communication of data in accordance with the data protection regulations would have been made.
Fourth.- In accordance with these premises, you must go to sections 1 and 2 of article 11 of the LOPD, a precept regulating the communication of data in the following terms:
"1. The personal data subject to the treatment can only be communicated to a third party for the fulfillment of purposes directly related to the legitimate functions of the assignor and the assignee with the prior consent of the interested party.
2. The consent required by the previous section is not necessary:
A) When the transfer is authorized in a law.
B) When it comes to data collected from sources accessible to the public.
C) When the treatment responds to the free and legitimate acceptance of a legal relationship whose development, compliance and control necessarily implies the connection of the mentioned treatment with files of third parties. In this case, the communication is only legitimate when it is limited to the purpose that justifies it.
D) When the communication that must be carried out, the Ombudsman, the fiscal ministry or the judges or tribunals or the Court of Auditors, in the exercise of the functions assigned to him, have as its addressee. Neither does the consent need when the communication has as a recipient autonomous institutions with similar functions to the Ombudsman or the Court of Auditors.
E) When the assignment occurs between public administrations and has as an object the subsequent treatment of the data for historical, statistical or scientific purposes.
F) When the transfer of personal data related to health is necessary to solve an urgency that requires access to a file or to carry out epidemiological studies in the terms established by the legislation on state or autonomous health. "
Based on what has been set forth here, we would be facing a transfer or communication of personal data that, when not having the consent of the person affected, would have to be resolved if it had a legal qualification that would allow the issuer to disseminate the Personal information of the complainant, in accordance with article 11.2 a) LOPD, previously transcribed.
In this regard, the Spanish Constitution recognizes the following rights in sections a) and d) of article 20.1:
"A) To express and spread freely the thoughts, the ideas and the opinions by means of the word, the writing or any other means of reproduction.
D) To communicate or to receive truthful information freely by any means of diffusion. The law shall regulate the right to the clause of conscience and professional secrecy in the exercise of these freedoms. "
Doncs bé, recalled the Constitutional Court in Sentence No. 14/2003, dated 28th of June, "the subjects who hold the freedom of information and the corresponding right to receive it are the community, each of its citizens and professionals in journalism. ".
In relation to the fundamental right to freedom of information, the same Court has ruled in Sentence 77/2009, of March 23, in the following sense:
"This Court has emphasized that the free exercise of the right to freedom of expression, as well as that of information, guarantees a relevant constitutional interest, such as the formation and existence of a free public opinion, which is a precondition and necessary for the Exercise of other rights inherent to the functioning of a democratic system, which has a constitutionally recognized limit on the right to honor of persons, which does not exclude criticism of the behavior of another, even if it is unconcerned and may annoy , To disquiet or displease the one to whom it is addressed, as pluralism, tolerance and the spirit of openness require it, without which there is no democratic society. They have also been indicated as circumstances to be taken into account when assessing the limits Of freedom of expression, the judgment on the public relevance of the matter, the type of intervention and, above all, the question of whether, in effect , Contribute or not to the formation of the public opinion, being influenced in that this limit weakens or loses weight in the weight to be realized when the holders of the honor exercise public functions or they are implicated in matters of public relevance, being in these cases more ample The limits of permissible criticism, because these people are exposed to a more rigorous control of their activities and manifestations than if they were simple individuals without any public projection.
This fundamental right to freedom of information may occasionally collide with the fundamental right to the protection of personal data, as in this case. In the face of this conflict, it is necessary to elucidate which of these two fundamental rights prevails, in accordance with the criteria established by the Constitutional Court.
In this respect, the Constitutional Court has been inclined to give a preferential position to the fundamental right to freedom of information in relation to other fundamental rights. Specifically, in Sentence 171/1990, of November 12, addressed the collision of the fundamental right to freedom of information with the right to privacy and honor in the following terms:
"Given its institutional function, when a collision of freedom of information with the right to privacy and honor takes place, it generally enjoys a preferential position and the restrictions that may arise from freedom of information in respect of freedom of information Be interpreted in such a way that the fundamental content of the right to information does not result, given its institutional hierarchy that has been denatured or incorrectly relativized (SSTC 106/1986 and 159/1986, among others).
If, when exercising the right to transmit information regarding facts or persons of public relevance, it acquires preeminence over the right to privacy and honor with which it may collide, it is bound to conclude that in that confrontation of rights, that of freedom Information, as a general rule, should prevail whenever the information transmitted is truthful, and refers to public affairs that are of general interest in the matters to which they refer, by the persons involved in them, thereby contributing to The formation of public opinion. In this case, the content of the right to free information "reaches its highest level of justifiable efficacy against the right to honor, which is proportionally weakened as an external limit of freedom of expression and information" (STC 107/1988, fj 2 ). "
Notwithstanding the foregoing, in the same Judgment the referred Court clarifies this prevalence, in the following sense:
"Such a preferential value, however, can not be defined as absolute, since, if it is recognized as a guarantee of public opinion, it can only legitimize interference with other fundamental rights that are consistent with that purpose, that is, relevant for The formation of public opinion on matters of general interest, lacking to that end legitimating, when the freedoms of expression and information are exercised in an exorbitant and exorbitant manner of the end in regard to which the Constitution grants him his preferential protection.
In turn, the same Constitutional Court, in relation to the limitations of the fundamental right to information in order to guarantee the effectiveness of other fundamental rights mentioned in article 20.4 CE, which include the privacy and Honor, he has established two essential requirements so that fundamental right first prevails over the second. Thus, in Sentence 148/2002, of July 15, in which the conflict was presented between the right to information and the right to honor, declared the following:
"As regards specifically the right to freely communicate information ... this Court has stated repeatedly that its legitimate exercise requires the concurrence of an essential requirement, namely the veracity of the information, The Constitution configures freedom of information as the right to communicate truthful information.This first requirement may sometimes add to the interest and public relevance of the information disclosed.In the absence of any of these requirements freedom of information is not constitutionally supported and , Therefore, its exercise may affect, to the detriment of one of the rights that, as a limit, is enunciated in Article 20.4 EC, in particular, and in this case, concerns the fundamental right to honor (SSTC 28/1996, of 16 Of February, FJ 3; 154/1999, of July 13, FJ 5). Hence, we have conditioned the constitutional protection of freedom of information, as opposed to Honor to the honor guaranteed in art. 18.1 EC, that the information be truthful and that it refers to facts with public relevance, in the sense of "news" (SSTC 138/1996, of September 16, FJ 3, 144/1998, of June 30, FJ 2, 21/2000, 31 January, FJ 4, 112/2000, 5 May, FJ 6, 76/2002, 8 April, FJ 3). (...)
A) The requirement of veracity of information has been understood from STC 6/1988, of January 21 (FJ 5), not as a requirement of a rigorous and total accuracy in the content of the information, so that they can To be exempt from any protection or constitutional guarantee of wrong or unproven information, but in the sense that it should be deprived of that protection or guarantee to those who, defrauding the right of all to receive truthful information, act negligently and irresponsibly when transmitting (SSTC 105/1990, 6 June, FJ 5, 171/1990, 12 November, FJ 8, 172/1990, 12 November, FJ 3). , 143/1991 of July 1, FJ 6, 197/1991, 17 October, FJ 2, 40/1992, 30 March, FJ 2, 85/1992, 8 June, FJ 4,240 / 1992, of 21 December, FJ 5). Therefore what the aforementioned requirement implies is that the informant, if he wants to be placed under the protection of art. 20.1 d) EC, has a special duty to verify the truth of the facts that it exposes through the appropriate investigations and using the due diligence.
However, the information may be inaccurate or erroneous, which can not be totally excluded, but "information that is correctly obtained and disseminated is worthy of protection (STC 6/1988, FJ 5), even if its total accuracy is controversial or (SSTC 171/1990, 12 November, FJ 8, 172/1990, 12 November, FJ 3, in the same sense, SSTC 240/1992, Of 21 December, FJ 5, 178/1993 of 31 May, FJ 5, 110/2000 of 5 May, FJ 8, 297/2000 of 11 December, FJ 9, 46/2002 of 25 Of February, FJ 6). (...)
B) As regards the public relevance of the manifestations made, it is not possible to ignore the framework in which the defendant intervened ... they are circumstances that give unquestionable public relevance to the manifestations made ".
Therefore, it is appropriate to determine whether the news broadcast by Catalunya Ràdio complies with the requirements of veracity and public relevance.
On the one hand and as regards the veracity of the news, the complainant understands that "The news contains several errors that seriously hurt me and, in general, all the news follows a lack of objectivity and knowledge regarding the interpretation and Effects of judicial decisions. It should be remembered that it is not a final ruling and that, therefore, it is subject to appeal (...). " Adding the complainant in his complaint paper that "The treatment of the same [news] with a clear sensationalist connotation seriously violates my right to honor, to privacy and to the image itself ..."
Previously, it should be said that it does not correspond to this Agency to comment on the presumed "sensationalist treatment" or "lack of objectivity" on the part of the entity denounced.
Having said the above, the information disseminated by Catalunya Ràdio should be considered truthful, in the sense that it reproduces the content of the Judgment dictated by the Social Court no. 1 of Girona, with the express mention that it was susceptible to appeal, that is, that it was not firm.
In this respect, although the complainant claims that the news contained "several errors", the fact is that the existence of these has not been credited to this Agency. It is also not surprising to note that according to the Constitutional Court Judgment No. 148/2002 - previously transposed in part -, this Court accepts the existence of inaccuracies or errors in the dissemination of a news, as long as they do not affect the essence of the information.
On the other hand, it is opportune to decide whether the disseminated facts had a certain public relevance, that is, if the facts were notable. Well, in this case the concurrence of this requirement can be recognized, given that, on the one hand, the subject matter is already relevant, and on the other hand, because in these events people are involved They developed public functions in a public work place.
In short, given that the news broadcast by Catalunya Ràdio would comply with the requirements of veracity and public relevance, it seems pertinent to consider that the requisites required by the constitutional doctrine are given in order to prevail the fundamental right to freedom of information regarding Fundamental right to the protection of personal data.
Fifth.- Apart from what has already been said, this Authority considers it necessary to carry out a series of considerations that the media should take into account in the dissemination of personal data.
Although in the present case, it is possible to admit the prevalence of the fundamental right to freedom of information, considers this Authority that in cases like the present where the dissemination of the news implies a processing of personal data, the medium Of communication should assess whether the fundamental right to freedom of information can be made equally effective without this having any effect on the fundamental right to the protection of personal data, for example, omitting the name and surname of the Person here denouncing, conduct that Catalunya Ràdio - subsequently - adopted in the news bulletin from 2:30 p.m. to 04/06/09, using the expression "the worker" to refer to The person here denouncing
That is why this Authority recommends to Catalunya Ràdio that, prior to the dissemination of a news item, analyze the need to publish certain personal data that allow identifiable individuals to be made visible, taking into account the notoriety or public relevance Of the affected person.
Likewise, it is not excessive to remember that in accordance with article 3 j) LOPD, the media are considered as sources accessible to the public, which means that once personal data has been disclosed in these Means, third parties can treat them without the consent of the people affected, which is why the aforementioned reflection is even more necessary.
Six.- In essence, the prevalence of the fundamental right to freedom of information regarding the fundamental right to the protection of personal data is confirmed in the present procedure, since, as stated above, the information disseminated complied with the requirements Of veracity and public relevance.
Article 10.2 of Decree 278/1993, of November 9, on the sanctioning procedure applicable to the areas of competence of the Generalitat, provides that:
"(...) no statement of charges will be made and the removal of the file and the file of the proceedings will be ordered when the proceedings and the tests carried out do not guarantee the absence of an offense or liability. This resolution will be notified to the interested parties ".
In accordance with the foregoing, and since it has not been proved during the present information the existence of rational indications that allow to attribute any fact that could constitute one of the infractions provided for in the LOPD, It is appropriate to agree to the archive of these previous information actions, while no more elements are available that allow the attribution of a fact that constitutes an infringement.
For all this,
RESOLC
First.- Filed the actions of previous information number 133/2009, regarding the Catalunya Ràdio SRG, SA.
Second.- Notify this Resolution in Catalunya Ràdio SRG, SA and the complainant.
Against this resolution, which ends the administrative procedure in accordance with article 14.3 of Decree 48/2003, of February 20, which approves the Statute of the Catalan Agency for the Protection of Data, the parties Interested parties may, alternatively, submit a request for reversal before the Director of the Catalan Data Protection Agency within one month from the day after notification, in accordance with the provisions of the Article 116 and following of Law 30/1992 or directly bring an administrative contentious appeal before the Administrative Contentious Courts, within two months from the day after its notification, in accordance with articles 8, 14 and 46 of Law 29/1998, of July 13, regulating the contentious administrative jurisdiction.
Similarly, interested parties may submit any other appeal they deem appropriate for the defense of their interests.
The director
Esther Mitjans Perelló
Barcelona, November 5, 2010
Carrer de la Llacuna, 166, 7a. Plant
08018 Barcelona
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