個人資料保護辦公室

Gabinete para a Protecção de Dados Pessoais

Office for Personal Data Protection

Complaint Case Notes
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No: 0104/2016/IP

Title: continued tele-marketing calls

Reason: Complaint

Brief:

      The current case stemmed from the tele-marketing calls from Company A to the Complainant. Company A called the Complainant for quite a number of times to promote its free home cleaning services, and pointed out that it had obtain his numbers from two of his friends. The Complainant repeatedly refused the free offers and also asked the Company to stop calling him. The cold calls, however, continued and then the Complainant asked the GPDP (Gabinete para a Protecção de Dados Pessoais/Office for Personal Data Protection) to investigate.

Analysis:

      The data processing found in the current case is subject to the PDPA (Personal Data Protection Act or Law 8/2005) according to its Article 4(1)(1) and 3(1).
    Company A revealed that anyone, after contacting their friends and families, then filling its “customer authorization form” and in which provided their friends’ or relatives’ names and contact numbers, could refer them for the free home-cleaning services. Then Company A would contact them directly.
    During investigations, the GPDP demanded Company A to include the Complainant’s numbers onto its opt-out list. However, Company A continued its cold calls. As long as the Complainant has a large circle of friends or relatives, he could have been continuously referred and colds calls might continue as a consequence, Company A explained. On several occasions the GPDP asked Company A to provide the “customer authorization form” that involved the referrals of the Complainant, but it failed to do so.
    When using the Complainant’s personal data for the purposes of direct marketing or any other form of commercial research, generally Company A could only rely on the precondition of the data subject’s unambiguous consent, as laid down in Article 6 of the PDPA, to legitimize its data processing. Given Company A’s failed provision of concrete evidence, proving the processing of the Complainant’s personal data was based on others’ referral and with his consent, it did not process the Complainant’s personal data legitimately according to Article 6 of the PDPA.

Result:

      Company A failed to prove that it processed the Complainant’s personal data upon his unambiguous consent, and thus violated Article 6 of the PDPA.  Having considered it was the first violation of the PDPA and its cooperativeness during the investigations, in addition that only general data were processed in this case, namely the contact numbers, and the general name, the GPDP decided to impose a penalty of MOP$16000, according to Article 33(2) of the PDPA.  
    After the GPDP’s investigations, Company A established a new dialer system in order to ensure the Complainant’s numbers were included onto its opt-out list. 

Reference:
Please refer to Article 3, 4, 6, and 33 of the PDPA.

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