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The Supreme Court has confirmed a fine of 7,500 euros to the company Miraclia Telecomunicaciones SL, as owner of the Juasapp commissioned telephone prank app, for violation of the Personal Data Protection Law, in relation to four pranks carried out between April and May 2016.

The Chamber rules out that the exclusion of data protection may be applied to the case, as the company wanted, as it is exclusively personal or domestic activities. The reason is that the person who performs the data processing is the company, not the person in charge of the joke, and it is not in the context of a particular or domestic activity, "a character that could be ascribed to the actions of the individual who spends the a joke, but in no case to the Miraclia society, which carries out its service-providing activity by providing the means for one person to tease another as a commercial activity that brings economic benefits. "

Likewise, the judgment highlights that in this case the recording of the voice is a personal data subject to the regulations for the protection of the automated treatment of the same, as it is associated with other data such as the telephone number or its availability to other people who can identify who it belongs to. They explain that Miraclia "stores and processes personal data of children who include telephone and voice, data that together undoubtedly make the person affected perfectly identifiable."

The judgment also establishes that "the commercial interests of a company responsible for a data file must yield to the legitimate interest of the owner of the data in the protection of the same." Remember in this regard that the interest of the company is not only or mainly to provide a means of leisure, but the commercial benefit obtained from it.

"This commercial interest is undoubtedly legitimate, but it certainly cannot prevail over the protection of the data of the affected persons, which requires their full and free informed consent for such data to be subjected to computer treatment," the magistrates point out. .

In this sense, they add that "the recording of the voice of the taxpayer of the prank is produced by a company to which they have provided their phone without prior consent, and it is only at the end of the recording of the prank ( with the prerecorded text of the joke and the eventual responses or attempts of interlocution by the teased) when the receiver of the call is interrogated if he authorizes the storage in a data file owned by Miraclia ".

For the Supreme Court, this request for authorization "after listening to a recording that, only at the end, the subject understands that it was a joke and that it could have been funny, but it could also have caused him doubts, surprise or alarm, it can hardly be considered a consent that meets the requirements stipulated in the Data Protection Act ".

This is so because the law in force at the time of the facts defines consent as "any manifestation of will, free, unequivocal, specific and informed, by which the interested party consents to the processing of personal data concerning him", and the Regulations Community General defines the consent of the affected party in analogous terms.

"Well," concludes the Chamber, "it does not seem that such features of a passive" consent "granted in a negative way can be predicated, that is, as not opposition to a question asked by telephone after a surprise recording such as a joke in the circumstances that concur in the case. In conclusion, we must reject the second allegation since, contrary to what the plaintiff maintains, there is treatment of personal data, regarding which it is highly doubtful that it can be admitted that there was consent. "

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