A man, who was wrongly entered in a debt collection file, will be compensated with 10,000 euros by the company that included him for alleged non-payment to an online appliance shop.
The citizen started legal action in defence of his right to honour for "unlawful interference" against the company. Aplazame SL by entering it in the creditworthiness files of Equifax y Badexcug.
His data, according to the firm's legal director, "were consulted on more than fifteen occasions by up to ten different institutions, he was refused three credit operations and had to take numerous actions to have his data removed from the files", causing the claimant "impotence and anxiety, financial distress, anxiety and emotional impact".
In November 2019, the citizen found out that he was on a list of defaulters because Bankinter refused him a loan due to "being included in the solvency files". Later, he was also unable to obtain a mobile phone, so he decided to exercise his right to access the files, which resulted in him being included by the company Aplazame Sl for alleged non-payment to an online appliance shop.
In April 2020, he decided to exercise his right of access to the files and was informed that he had been included in Equifax and Badexcug at the request of the defendant. This entity informed him that his inclusion was due to the non-payment of a purchase made at the online household appliance shop 'Electrocosto', which he also contacted and indicated that his name and surname appeared in connection with an email address that the plaintiff did not identify, and he therefore proceeded to file a complaint with the National Police on 30 April 2020.
The defendant defended the correct transfer of the claimant's data on the basis that the loan contract concluded online on 30 August 2019 to finance the purchase of several household appliances on the same date is valid and was unpaid, and that before communicating the debtor's data to the debtors' files it notified the claimant of the non-payment and warned him of the consequence.
However, Judge Susana Álvarez García emphasised that, except for the photograph of the plaintiff's ID card, none of the information contained in the contract is recognised by the affected party, nor has it been proven that it belongs to him (telephone, email, address...), and that, as he himself pointed out during the hearing, although the purchase is financed, the loan contract does not indicate the means of payment to be used, nor is there an account number to which the debits should be made.
The head of Vigo Court of First Instance 8 concluded that, as the Public Prosecutor's Office found, Aplazame had failed to comply with the obligations laid down in paragraphs 6 and 9 of Article 98 of the Royal Legislative Decree 1/2007, of 16 November 2007The Spanish Parliament, by which the revised text of the General Law for the Defence of Consumers and Users and other complementary laws is approved, relating to the formal requirements of contracts concluded at a distance. Specifically, the obligation to confirm the offer in writing and to adopt the necessary measures to unequivocally identify the contracting party.
He adds that the notification of the debt suffers from the same defects, since it is sent to an address which is not known to the applicant, and does not even appear to have been received by anyone. Furthermore, he points out that Article 20 of the Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the guarantee of digital rightsIt also states that "the creditor shall be responsible for ensuring that the requirements for inclusion of the debt in the system are met, and shall be liable for their non-existence or inaccuracy".
The magistrate recalls that the majority of judgments consider the inclusion of a person in a register of defaulters to be illegitimate when the reality of the situation disproves the reasons for their inclusion, and that in most cases this fact is associated with the generation, in itself, of moral damage for the person affected, regardless of the financial consequences that may have been effectively derived.
Jurisprudence in the supreme court
Álvarez García highlights the judgement of the Supreme Court of 24 April 2009, handed down by the Plenary, which states that this Civil Chamber in Plenary, "has resolved as a jurisprudential doctrine that, as a principle, inclusion in a register of defaulters, erroneously, without truthfulness, is an unlawful interference with the right to honour, as it is an imputation, that of being a defaulter, which harms the dignity of the person and undermines their reputation and attacks their self-esteem".
It also indicates that since the Supreme Court ruling of 29 January 2013, the "principle of data quality" has been enshrined as one of the fundamental axes of the regulation of automated processing of personal data, stating that the special legislation on personal data protection "is based on principles of prudence, weighting and, above all, truthfulness, so that the data processed must be authentic, accurate, truthful and must always be up to date, accurate, truthful and must always be up to date, and therefore the data subject has the right to be informed of them and to obtain the appropriate rectification or cancellation in the event of error or inaccuracy, and as far as monetary obligations are concerned, the debt must be not only due and payable, but also certain, that is to say, unequivocal and unquestionable, and a prior request for payment is also necessary; Therefore, it is not possible to include debts that are uncertain, doubtful, not peaceful or subject to litigation, it being sufficient for this to appear as a principle of documentary proof that contradicts their existence or certainty".
Based on the foregoing, the judge considers that there has been a violation of the plaintiff's right to honour by Aplazame by including him in the solvency files "without him having contracted any real debt with the defendant and without the defendant having informed him of its existence", and therefore upholds the claim he filed against this company and orders it to pay the plaintiff 10.10,000 euros, the amount claimed, plus legal interest from the date on which the claim was filed - 6 October 2020 - as well as the costs of the proceedings.
The judgment is number 71/2022 of 24 March.
The judge indicated that contrary to what Aplazame claims, there was no negligence in the behaviour of the plaintiff, since as soon as he became aware of the transfer of his data he informed the company and tried in various ways to be immediately excluded from the files, "without the defendant having shown any cooperation or having given a satisfactory response to his claims".
In fact, it points out that only after a formal complaint did the defendant reply acknowledging that, following an internal investigation, it considered it possible that an offence of impersonation had been committed, and announcing that it would take the appropriate steps with Equifax.
Finally, the magistrate states that, as the SC recalls in its judgment of 23 March 2018, individuals "are not required to show the same professionalism and thoroughness in their relations with companies as is required of the latter, as a consequence of their professionalism and regularity in commercial transactions", and that "it is sufficient that they have reasonably shown their disagreement with the conduct of the company and that the claim that the creditor claims to have lacks sufficient basis so that, without prejudice to the company's right to claim payment, such a claim cannot give rise to the inclusion of the customer's data in a register of defaulting debtors, given the serious consequences that such inclusion has for the moral and patrimonial sphere of the person affected by such data processing".
Token compensation does not deter companies from this illegal practice.
"Once the illegitimate intrusion and the violation of the right to honour have been accredited, we must remember that the right to honour, to personal and family privacy and to one's own image is constitutionally guaranteed and protected by article 18 of the Constitution, and other regulations with the status of law, and it concerns the fixing of compensation, which will be assessed according to the circumstances of the case and the seriousness of the injury produced", points out Unive Abogados.
José Ángel Martínez, the firm's legal director, stresses that "the Supreme Court has said that in this type of case, compensation should be awarded that is not considered merely symbolic, because then it does not dissuade companies that improperly include their clients' personal data on default registers from persisting in their unlawful practices".
The sentence is not final and can be appealed before the Provincial Court of Pontevedra.