DPA case 80/2020 – Dismissed (Belgium, 2020)

The complaint concerns the use of surveillance cameras placed in a car wash. The plaintiff was not the data subject neither an authorized person on his behalf. He also wished his identity to remain unknown. May a party remain anonymous at the substantive stage of a procedure? May a person other than the data subject lodge a complaint? The person lodging a complaint may request that it be dealt with anonymously. Such possibility of an anonymous complaint is expressly provided for in Article 95, §2, 2° WOG (which concerns the procedure prior to a decision on the merits) and in Article 98 WOG (which concerns the substantive stage of the procedure) also refers. The Litigation Chamber therefore accepted the request for anonymous complaint-handling, and adapted its course of action accordingly. However, the Litigation Chamber found that the handling of the complaint was affected by a procedural defect. It agreed with the defendant’s argument that the complaint should have been dismissed pursuant to Article 47 of the Rules of Internal Order, who provides that the identity of the plaintiff shall not be automatically revealed to the other party when there is a serious risk that such disclosure would lead to adverse consequences. For those cases where such a “serious risk” does not appear to exist but the plaintiff himself has requested anonymity, the express consent of the plaintiff must be sought to reveal his identity to the other party. If the plaintiff does not agree, the complaint must be deemed to have been lodged to be closed with no further action. In this case, not only was the risk assessment not carried out, but the complaint was not dismissed as soon as the plaintiff indicated that he wished to remain anonymous. The AVG does not prevent a person other than the data subject from lodging a complaint with the national data protection authority. Article 58 of the WOG allows any person to lodge a complaint, provided that she has a sufficient interest in doing so.