DPA case 42/2020 – Dismissed (Belgium, 2020)

On 25 of February 2019 the complainant has submitted a complaint against Organization 2. The essence of the complaint was: screenshot of his Facebook profile picture was shared by Organization 2 without his consent. The complainant asserted that his profile picture was not publicly available. On 8 July 2019 DPA declared the complaint admissible. On 23 July 2019 the Disputes Chamber decided that the file was ready to be considered on the merits. On 4 September 2019 the Disputes Chamber received the response of both organizations involved in this processing (defendants). On 8 October 2019 the Disputes Chamber received the conclusion response of the complainant, limiting the subject of the complaint to the sharing of the picture via email. On 30 October 2019 Disputes Chamber accepted another comment from the defendants, stating that the complainant violated article 124 of the electronic communications law by deliberately accessing the email that was not addressed to him. On 27 May 2020 the parties were heard by the Disputes Chamber. The defendants were able to demonstrate that the Facebook profile picture of the complainant was publicly available and in no way protected. The organizations are also of the opinion that no personal data processing took place in this case because the complainant failed to demonstrate that his picture was structured according to the specific criteria. In case if the DPA finds that personal data processing took the place, the defendants invokes legitimate interest as a legal basis of processing and refers DPA to the judgement of the Sports Court prohibiting the complainant from attending training sessions, championships or other competition organized by Organization 1 for the period of one year. On 8 October the complainant agreed that his profile pictures were publicly accessible. However, in his opinion legitimate interest was not applicable in this case because it was possible to find his picture by searching on Facebook directly. S