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: 0068/2014/IP

Title: Sending promotion text messages

Reason: Complaint

Brief:

    Citizen X said that he was not customer of Company A, but his cell phone number Y began to receive promotion text messages which were sent by Company A.
  Citizen X believed that Company A might have violated the Personal Data Protection Act by acquiring his data and sending him promotion text messages, to which his consent was not given. And thus filed complaint to the Office for Personal Data Protection (GPDP).

Analysis:

    In accordance with the Articles 4(1)(1) and 3(1) of the Personal Data Protection Act (PDPA), the data processing in this case is within the scope of regulation by the said Act.
  In GPDP’s opinion, generally, the commercial organizations process personal data for the purposes of direct marketing, there should exist the expressed consent of the data subjects or for the performance of a contract. Otherwise, the data controllers do not have the conditions establishing legitimacy as laid down in Article 6 of the PDPA, including sending commercial electronic information.
  According to Company A, Customer Z agreed to receive messages when he used the services, and telephone number Y was provided, which is X’s cell phone number. At the same time, the user of that number never asked to stop sending him the messages. Hence Company A believed that the expressed consent had been obtained before sending promotion material to that number.
  Based on the information provided by Company A, the cell phone number Y has been processed since 2009, but citizen X said that he began to receive promotion messages which were sent by Company A two years ago, therefore, it might be because Customer Z provided the wrong number, or because X acquired and used that number after Z had stopped using it. On the other hand, Citizen X never expressed to Company A that he rejected to receive any promotion information or indicated there was a mistake in the information. Under that circumstances, we cannot consider that Company failed to ensure the accuracy of the data in accordance with the Article 5(1)(4) the Personal Data Protection Act (PDPA).
  Additionally, the processing of personal data for the purpose of direct marketing, the data subjects have the right to object as provided in Article 12 of the said Act. Since Citizen X never refused receiving promotional messages, it cannot be considered that Company A did not respect X’s right to object. In fact, after the investigation of this Office, X’s cell phone record has been erased, and Company A no longer sends the promotional messages to X.
  In summary, there is no information showed that Company A violated the Personal Data Protection Act.

Result:

    The GPDP has informed Citizen X and Company A. The case is closed.

Reference:
Please refer to "Personal Data Protection Act", articles 3, 4, 5, 6 and 12.

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