BEINNOVA.ES – €2,000 Fine (Spain, 2021)

The complainant informed the AEPD on 2 July 2020 that he had been receiving e-mails from the website creation company "beiNNova" without him having any relationship with that company. The complainant sent emails to unsubscribe to the newsletter and to stop the sending of unwanted mail but he did not receive a reply from the company and the sending of emails continued. The AEPD initiated a sanctioning proceeding against "bieNNova" on 4 December 2020. Subsequently, the AEPD tried to contact the company and did not obtain any response or allegations. Is sending advertising emails without the consent of the recipient an infringement of Article 21 of the [https://www.boe.es/buscar/act.php?id=BOE-A-2002-13758 Spanish Information Society Services Act] (LSSI) implementing the e-Privacy Directive? The AEPD considered that the conduct of the company "bieNNova" infringed Article 21 LSSI (Ley de Servicios de Sociedad de la Información y de Comercio Electronico). Article 21 establishes that it is forbidden to send advertising or promotional communications by e-mail or any other equivalent means of electronic communication that have not been previously requested or expressly authorised by the recipients of such communications. Article 38(4)(d) of the same law graduates the sanction as minor, defining the conduct as "the sending of commercial communications by electronic mail or other equivalent means of electronic communication when such mailings do not comply with the requirements set out in Article 21 and do not constitute a serious infringement". In this case, the aggravating circumstance of the existence of intentionality was taken into account (Article 40(a) LSSI). The AEPD fined the controller €2000 for failing to comply with Article 21 LSSI.