The Spanish authority dismissed a sanction procedure because the link between the targeted company and the disputed commercial call could not be formally established, the mere assertion of the teleoperator being deemed insufficient.

Facts and context

The Spanish data protection authority (AEPD) today published a decision to dismiss a procedure against the company FUSIÓN ENERGÍA SIGLO XXI, S.L. concerning an allegedly unconsented commercial prospecting call.

The case originated from a complaint by an individual who received a commercial call on August 6, 2024, during which the interlocutor claimed to act on behalf of the company.

Reasons for the decision

The authority concluded that it was impossible to establish an infringement attributable to the company concerned for the following reasons:

• Impossibility to attribute the processing to the company concerned: Although the complainant provided evidence of the call received, the authority considered that no element allowed to establish with certainty that the company FUSIÓN ENERGÍA SIGLO XXI, S.L. was the originator of this call or responsible for it. It was not proven that the originating phone line belonged to the company or that there was a contractual relationship with a third party acting on its behalf. The mere statement of the telephone operator claiming to call on behalf of the company was deemed insufficient to impute the responsibility of the processing to it.

Despite attempts to notify the complaint and then the opening of the procedure, which were returned with the mention "Unknown", and the absence of any response or allegation from the company, the authority considered that the facts constituting the infringement were not sufficiently established.

Authority's decision

Consequently, the authority ordered the dismissal of the sanction procedure against FUSIÓN ENERGÍA SIGLO XXI, S.L.

Lessons learned

This decision reminds that:

• The burden of proof of the imputability of unlawful processing to a controller lies with the supervisory authority.
• The mere statement of a teleoperator claiming to act on behalf of a company does not constitute sufficient evidence to attribute responsibility for the call to said company.
• For a complaint of unlawful prospecting to succeed, it is necessary to provide concrete evidence establishing a direct link between the caller and the entity concerned (for example, ownership of the line).
• The absence of a response from a concerned entity to a procedure does not automatically lead to a sanction if the alleged facts are not materially proven and formally attributed.