TELEPHONE CALLS FOR ADVERTISING PURPOSES – LACK OF CONSENT FOR THE COLLECTION AND PROCESSING OF PERSONAL DATA – UNLAWFUL CONDUCT BY A COMPANY AND CLAIMS FOR MORAL DAMAGES – By making the above calls to persons unknown to it, the company breached the provision of Article 11 of Law 3471/2006, and the said unlawful and culpable act caused the plaintiffs moral damages, owing to the disturbance caused to them by the unsolicited telephone calls of the defendant for promotional and advertising purposes, despite the fact that they had taken every necessary step in order not to receive such calls, with the defendant’s conduct disregarding (even if only through negligence) their said expressly stated wish in order to serve its commercial purposes – Lawsuit partially upheld (Articles 11, 14 of Law 3471/2006, 932 of the Civil Code (AK)).
ATHENS COURT OF FIRST INSTANCE
APPEALS DIVISION
JUDGMENT NUMBER 9191/2023
THE ATHENS SINGLE-MEMBER COURT OF FIRST INSTANCE
WAS COMPOSED of Judge …………, Judge of First Instance, who was designated by the President of the Three-Member Administrative Council of the Athens Court of First Instance, and of Clerk ………….
SAT in public session in its courtroom on ………… to try the case between:
THE APPELLANTS: 1)…… and 2) ……………, both residents of ………………, who appeared in court through their attorney-in-fact Konstantina Drakou.
THE RESPONDENT: A société anonyme under the name «……» with its registered seat in ……, with VAT number (AFM) …………………., as duly represented, which appeared in court through its attorney-in-fact ………
The appellants filed before the Athens Magistrate’s Court their lawsuit dated …………….. and bearing filing number ……………… against the respondent and requested that it be upheld. The court of first instance, by its final judgment no. …………, dismissed the lawsuit. Against the above judgment, the appellants filed before the court of first instance an appeal dated ……………… and bearing filing number ………….., a copy of which was lodged with the Registry of this Court under filing number …………………., which was scheduled to be heard on the hearing date set out at the beginning of the present judgment and was entered on the cause list.
At the hearing of the appeal, the parties’ attorneys-in-fact requested that everything stated in the minutes of the public session and in the briefs they filed be accepted.
HAVING STUDIED THE CASE FILE
HAVING DELIBERATED IN ACCORDANCE WITH THE LAW
…
By their lawsuit under examination, the plaintiffs, on a fair construction of the pleading, alleged the following: That they are cohabiting partners and have been living together since ……….. That since ………. they have been disturbed, with human intervention, by direct calls promoting the products of the defendant on number …….., for which the second of them holds a contract with company ……….., despite the fact that the said number is on the list (the relevant register kept by the telephone company) of those who do not wish to receive such calls for the commercial or advertising promotion of distance sales of goods or supply of services. That, similarly, the first of them is disturbed, with human intervention, by direct calls promoting the products of the defendant on number …………….., for which he holds a contract with company ………, despite the fact that the said number is on the list (the relevant register kept by the telephone company) of those who do not wish to receive such calls for the commercial or advertising promotion of distance sales of goods or supply of services.
…
The matter of telephone calls for the purpose of direct promotion of products or services and for any kind of advertising purpose is regulated by Article 11 of Law 3471/2006, which sets out the rules concerning unsolicited communications. More specifically, pursuant to the provision of that article: «1. The use of automated calling systems, in particular by means of facsimile machines (fax) or electronic mail, and more generally the making of unsolicited communications by any means of electronic communication, without human intervention, for the purpose of direct commercial promotion of products or services and for any kind of advertising purpose, is permitted only if the subscriber has given prior express consent. 2. The making of unsolicited communications with human intervention (calls) for the above purposes is not permitted where the subscriber has declared to the provider of the publicly available service that he does not, as a general matter, wish to receive such calls. The provider is obliged to enter such declarations free of charge in a special register of subscribers, which is available to any interested party, […] 5. Providers of electronic communications services are obliged to take the appropriate measures, determined by joint act of the Hellenic Data Protection Authority (HDPA) and the ADAE, in order to prevent unsolicited communications. The provider of publicly available electronic communications services who breached this obligation through negligence, as well as the obligation laid down in the second sentence of paragraph 2, shall be liable to the recipients of unsolicited communications, who shall have the right to claim damages for any pecuniary loss or pecuniary compensation for moral damages. For the pecuniary compensation on grounds of moral damages, the provision of paragraph 2 of Article 14 of the present law shall apply by analogy. The provider of publicly available electronic communications services shall not be obliged to pay damages or to take measures to prevent the breach from being repeated in the future, provided he proves that he is not at fault».
…
As a consequence, the pleading of the lawsuit of the person aggrieved by the «breach», who seeks compensation for «moral damages», which is defined independently of pecuniary loss, need only refer to the breach which leads, as a result, to «his moral damages», as a simple «formal procedure for proving the breach», so that there is no need to refer to the individual elements of the moral damages (in contrast to the articles of the Civil Code (AK), and to pecuniary loss, which requires full reasoning) which he suffered to his personality, which is apparent and is established. As mentioned, the provision of Article 14 paragraph 2 of Law 3471/2006 lays down a minimum threshold of compensation for moral damages of 10,000 euros. The setting by this provision of a minimum amount of pecuniary compensation aims to safeguard the protection of citizens against infringements of their personality, and forms part of the measures taken by the State in implementation of its obligation, imposed by Article 2 paragraph 1 of the Constitution, to respect and protect the dignity of the person. From a combined reading of the above premises, it follows that the said provision of Law 3471/2006, as regards the minimum monetary threshold, is unconstitutional for the following reasons:
It is by reference to the said criteria of the principle of proportionality that the power conferred upon the legislator by the provision of Article 26 paragraph 1 of the Constitution to set, in regulating the relations of social life and in determining the sanctions and obligations arising from the conduct of citizens, minimum or maximum thresholds, on an abstract assessment, within which the judge proceeds to specify the rule of law on the basis of the particular circumstances, is also assessed. Within the framework of this power, the Legislator may determine both the conditions for damages and pecuniary compensation and the minimum amount at which the infringement of the honour and reputation of the aggrieved party is assessed.
…
In the present case, by their appeal under examination, the appellants, on a fair construction of the pleading, allege that the court of first instance, by dismissing their lawsuit as inadmissible on grounds of lack of specificity, erred because the facts that constitute the right they assert are set out therein and the personal data alleged to have been unlawfully processed by the defendant are exposed in a clear manner. In addition, they allege that the court of first instance erred for the further reason that the legal basis on which the lawsuit at issue concerning unsolicited commercial communication (Law 3471/2006) is grounded does not require, as an element of specificity, that the existence of the element of fault be set out. Those grounds of appeal are well-founded and must be upheld, because, in accordance with the matters set out in the foregoing major premise, where a lawsuit for damages on grounds of unsolicited commercial communication (Law 3471/2006) is concerned, the mere breach of a provision of the said law also triggers the consequences for those in breach, hence liability is quasi-strict and presumed, without it being necessary to set out the element of fault more specifically.
…
However, despite the registration of the said fixed-line telephone number in the register of Article 11 of Law 3471/2006, on …………… as set out above, on ……………, on ………….. and on ……………. representatives of the defendant continued to call the second plaintiff on the said telephone number for the promotion and advertising of the defendant’s services, while during the course of the said calls the second plaintiff made the relevant indication to them that he did not wish to receive such calls and that his telephone connection was registered in the special register of Article 11 of Law 3471/2006. Subsequently, with regard to mobile telephone line number ……………, it was proven that, despite the registration of the said number in the register of Article 11 of Law 3471/2006, on ……………. as set out above, on …………….. (twice) and on ………… representatives of the defendant called the first plaintiff on the said telephone number for the promotion and advertising of the defendant’s services, while during the course of the said calls he made the relevant indication to them that he did not wish to receive such calls and that his telephone connection was registered in the special register of Article 11 of Law 3471/2006.
…
However, in accordance with the matters set out above in the foregoing legal consideration, in the present case, in light of the particular circumstances (the type and gravity of the infringement, the degree of fault, the social position and financial situation of the parties), the provision of Article 14 of Law 3471/2006, which lays down as the minimum threshold of pecuniary compensation for moral damages the sum of 10,000 euros, breaches in the present case the constitutional principle of proportionality (between the means employed and the aim pursued) and, consequently, the Court is bound not to apply, in the present case, the said provision.
…
FOR THESE REASONS
JUDGES the matter with both parties present.
ACCEPTS the appeal both formally and on the merits.
SETS ASIDE final judgment no. ………… of the Athens Magistrate’s Court (special procedure for property disputes – labour section).
RETAINS and TRIES the case on the merits.
UPHOLDS in part the lawsuit under examination.
ORDERS the respondent – defendant to pay to each of the appellants – plaintiffs the sum of two thousand (2,000) euros, with statutory interest from service of the lawsuit until full payment.
ORDERS the return to the appellants of the appeal filing fee.
ORDERS the respondent to bear part of the appellants’ court costs for both instances of jurisdiction, which are set at the sum of four hundred (400) euros.
It was adjudged, decided and published in extraordinary public session in its courtroom in Athens, without the presence of the parties and their attorneys-in-fact, on …………………. 2023.
…. JUDGE …. CLERK
FREQUENTLY ASKED QUESTIONS ON MORAL DAMAGES FROM TELEPHONE CALLS FOR ADVERTISING PURPOSES
1. What rights do I have when I receive unsolicited advertising calls?
Article 11 of Law 3471/2006 prohibits telephone calls for commercial promotion where the subscriber has declared to his provider that he does not wish to receive such calls and his number has been entered in the relevant register. Where a company disregards that registration and continues to call, its conduct is deemed unlawful and culpable. The aggrieved party has the right to claim pecuniary compensation for the moral damages suffered as a result of the disturbance and the infringement of his personality, independently of any material loss.
2. What can I do to stop the calls and obtain compensation?
The first step is the registration of your number in the register of Article 11 of Law 3471/2006 through your telephone provider, free of charge. Should the calls continue, a complaint is lodged with the Hellenic Data Protection Authority (HDPA), which may impose administrative fines on the company. In parallel, a lawsuit is filed before the Single-Member Court of First Instance for pecuniary compensation on grounds of moral damages. On the basis of recent case law (such as judgment no. 9191/2023 of the Athens Court of First Instance), sums are awarded that are tailored to the particular circumstances, in accordance with the principle of proportionality.
3. How much compensation can I claim for moral damages?
Article 14 paragraph 2 of Law 3471/2006 lays down a minimum threshold of pecuniary compensation of 10,000 euros. However, recent case law holds that this threshold may be disapplied where it breaches the constitutional principle of proportionality, depending on the gravity of the infringement, the number of calls, the degree of fault on the part of the company and the financial situation of the parties. In judgment 9191/2023, 2,000 euros were awarded to each plaintiff. The exact amount depends on the particular elements of each case and is determined by the court.
4. How long does the procedure for claiming compensation take?
The procedure begins with the filing of a lawsuit before the Single-Member Court of First Instance. From filing to delivery of the first-instance judgment, the period is generally one to two years, depending on the court’s caseload. In the event that an appeal is filed, the overall procedure may be extended. In parallel, the complaint to the Hellenic Data Protection Authority (HDPA) is examined independently and is usually concluded more quickly. Statutory interest is calculated from service of the lawsuit until full payment, thus covering the time taken by the proceedings.
5. What documents and evidence do I need for the lawsuit?
A certificate from the telephone provider stating that the number is registered in the register of Article 11 of Law 3471/2006 is required, as well as the date of registration. The itemised call records showing the incoming numbers, dates and times of the disturbing calls are gathered, as well as any element identifying the company as the caller. A recording of the content of the calls, where this is permitted, is useful, as is documentation of the express statements made to the company’s representatives that you do not wish to receive such calls. Furthermore, any prior correspondence or complaints strengthen the case.
6. What is the role of the lawyer in cases of unsolicited calls?
The lawyer first assesses whether the conditions of Law 3471/2006 are met, gathers the evidence and drafts the complaint to the Hellenic Data Protection Authority (HDPA). He drafts the lawsuit for moral damages, represents the client before the Single-Member Court of First Instance and develops argumentation as to the amount of pecuniary compensation on the basis of the constitutional principle of proportionality. In the event of a dismissive judgment, he files an appeal. The firm’s experience in cases concerning the protection of personal data and moral damages ensures the proper legal foundation and the effective enforcement of the client’s rights.