Supervista Optics Spain – €20,000 Fine (Spain, 2024)

On the 2 January 2024, the data subject filed a complaint against the controller, Supervista Optics - an optician, with the Spanish DPA (AEPD). The data subject had received an email from the controller informing her that although it had been two years since she had purchased glasses with the controller, she is entitled to a free eye examination with the controller. The data subject had previously exercised her right to object to receiving any marketing communications on 24 May 2023. The controller had acknowledged receipt of the request and placed the data subject on a “marketing blacklist”. The controller argued, that the communication was a service email, which did not discuss content of a commercial nature. It detailed that it was justified in sending this email as the warranty for the purchased glasses had not expired yet. It further argued that Article 21(2)(1) of the Spanish transposition of the e-privacy Directive, Law 34/2002 ([https://www.boe.es/buscar/act.php?id=BOE-A-2002-13758 Ley 34/2002 - LSSI]) allows for the delivery of commercial advertisements as long as there is a contractual relationship between the controller and the data subject. The AEPD held, that any form of communication, which directly or indirectly promotes the goods, or services of a company is classified as being of a commercial nature. Although the service offered is free of charge, it is performed as part of the controller’s commercial activity as an opticians. [https://www.boe.es/buscar/act.php?id=BOE-A-2002-13758 Article 21(2)(1) LSSI] would only hold up if the data subject had not specifically exercised their right to object. The AEPD set a fine of €20,000 for the violation of [https://www.boe.es/buscar/act.php?id=BOE-A-2002-13758 Article 21(1) of the LSSI].