SCHOOL FITNESS HOLIDAY & FRANCHISING, S.L. – €36,000 Fine (Spain, 2025)

The data subject was a gym member at a fitness franchise (School Fitness), which allegedly acted as a joint controller together with the local gym. On 7 February 2021, the data subject filed a complaint through the controller’s website as they were unhappy about being filmed during fitness classes without consent. In its reply, the controller asserted that the data subject had given consent by signing the membership contract. The contract contained a clause stating that by signing, the member authorised the company to use all images, photographs, videos, voice recordings, graphics, etc., in which they appeared. On 9 May 2023, the data subject noticed that a phone was recording the class, despite their repeated objections to being filmed. The data subject believed that the contractual clause referred to in the email exchange was abusive and, on 30 May 2023, filed a complaint with the AEPD (Spanish DPA). Upon receiving the claim from the DPA, the controller denied the allegations. It asserted that members who signed the contract expressly consented to being recorded and to the dissemination of the recorded material for promotional purposes. It also claimed that verbal consent was obtained during classes. During the investigation, three main issues arose: first, whether the clause in the membership contract validly obtained consent for recording; second, whether the controller complied with the GDPR principles for processing images; and third, whether there was a properly formalised data processing agreement between the franchise and the local gym concerning the handling of images. Additionally, the data retention policy indicated that images would be kept indefinitely. The DPA found that the combination of a clause in a subscription contract and verbal consent did not meet the standards under Article 7(1) GDPR. Freedom of consent could not be demonstrated through the contracts signed by data subjects. It lacked a specific, clearly separated clause dedicated to the