Can a company claim for its improper inclusion in a delinquent file?
In recent years we have seen how natural persons have exercised the rights that legitimately correspond to them as a result of their improper inclusion in the economic solvency file or , as they are commonly known, delinquent files, claiming not only the cancellation of their data but also compensation for damages.
Such claims filed by individuals, either against the alleged service providers and self-defined as creditors, or against the owners of the files (ASNEF, EQUIFAX, BEDEXCUG, etc. ), find legal protection in art. 20 Organic Protection Law Data (LOPD) and arts. 38 to 40 of the Regulations for the development of Organic Law 15/1999, of December 13, on the protection of personal data, as well as Organic Law 1/1982, of May 5, on civil protection of the right to honor , to personal and family privacy and to one’s own image.
The doubt arises when the data that has been improperly included in a file of defaulters corresponds to a legal person, that is, a commercial company, because in such a case the regulations of Data protection is not applicable as it is expressly provided for in art. 1 LOPJ in line with the European regulations on the matter contained in Regulation (EU) 2016/679 of the European Parliament and the Council, of April 27, 2016, regarding the protection of natural persons with regard to the treatment of your personal data and the free circulation of this data, and complete its provisions.
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The lack of applicability of data protection regulations to legal persons implies, among other issues, that the prior requirement of the alleged debtor is not enforceable informing you that, if payment is not made, your data may be communicated to the registry of defaulters (arts. 38.1.c and 39 of the Personal Data Protection Regulation).
Such a situation does not, however, prevent legal persons who have seen their data improperly included in an insolvency file from accessing the protection of the courts and tribunals, because although the regulations of data protection is not applicable to them, their situation is protected by Organic Law 1/1982, of March 26, on Civil Protection of the Right to Honor, Personal and Family Privacy and Self-Image, having the Constitutional Court interpreted in a peaceful way that the rights contained in said norm are predicable both with respect to natural and legal persons, for example, in its Judgment of September 26, 1995:
“the legal entity may also see its right to honor violated through the disclosure of facts concerning its identity, when it defames it or detracts from it in the consideration of others (article 7.7 lo/1982)”< /em>
The honor of the legal entity subject to guardianship would be identified in these cases with the commercial reputation and professional prestige, therefore any commercial company that has been improperly included in a file of defaulters and, with this, has seen its reputation and prestige attacked, can exercise the corresponding action for damages to claim such moral damages suffered, and may also claim the property damages suffered by such improper inclusion.
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According to jurisprudence, non-material damage includes the professional prestige that legal persons also have as an external manifestation of honor that can have repercussions both on the company’s own image society as well as the economic results of its activity. For its part, patrimonial or material damages, in accordance with the provisions of art. 1,106 of the Civil Code, would include the categories of emergent damage (real, effective and accredited loss suffered as a consequence of the improper inclusion in the file) and lost profits (income or profits that have ceased to be obtained due to said improper inclusion). , both claimable in attention to the specific circumstances of the case.
The viability of a claim for damages brought by a commercial company for its improper inclusion in a file of defaulters will depend in any case on the prior action taken by the injured party and on the evidence that you can count on to prove that, before reaching such a claim, you have deployed all the activity that was required of you to refute the origin of the claimed debt; pay the part of the debt that, where appropriate, was appropriate; minimize the potential damage suffered and/or require the claimant service provider to retract its unlawful action under penalty of being called to a procedure where damages and losses derived from its negligent behavior will be demanded, among other issues.
Judicial reality shows that these types of claims, although they are framed in a specific legal context and jurisprudence that serves as a guide for establishing the criteria and circumstances that must be met For their viability, they must be analyzed on a case-by-case basis and require verification by the court that the claimant, before including their data in the defaulters file, has managed to prove the concurrence of the three basic requirements of any action of claim for extrajudicial responsibility, namely, unlawful act, effective damage and causal link between one and the other.
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Maria Olivares Sánchez
Commercial Law Department
01/07/2022
