II SA 2135/02

Mr X lodged with the Inspector General for Personal Data Protection, hereinafter called the Inspector General, complaint concerning processing of his data by Z Limited Liability Company. The offer to use the Z Limited Liability Company`s services has been delivered as a result of marketing action conducted by Y Limited Liability Company running amongst others Club K in which Mr X had membership. The Inspector General has ordered by means of administrative decision to restore the proper legal state by blocking of processing of Mr X`s data for marketing purposes as the company did not possess Mr X`s consent. By means of a separate decision the Inspector General refused to consider an application concerning unlawful personal data processing carried out by Z Limited Liability Company as this company did not process Mr X`s personal data. Following the above Y Limited Liability Company has lodged a complaint against the Inspector General`s decision to the Supreme Administrative Court in which it applied for reversal of the decision and discontinuance of legal proceedings. The company stated that it possessed Mr X`s consent for the processing of his personal data, which was, according to the Rules of Club K, contained in the declaration of joining the Club K signed by Mr X. In the case in question the Supreme Administrative Court has therefore stated that filling in the declaration of joining the Club K by the data subject does not mean that the person concerned has given his/her consent for disclosure of his/her data to other firms and for forwarding other firm`s information materials. While giving consent for membership in the Club K, Mr X did not have to realise that the Rules of Club K allow for the processing of his personal data for purposes other than the ones resulting from Club K membership. The Supreme Administrative Court has shared the Inspector General`s position and stated that there was no consent of Mr X to process the data. Such consent can not be alleged or presumed on the basis of the declaration of will of other content, it has to be explicit and all its aspects have to be clear for the person giving it at the moment of expression.

Because of the above, the Supreme Administrative Court did not recognise the Inspector General`s decision to be a breach of law.