Bachelor parties, business dinners, wedding gifts, parents, etc. Many are the WhatsApp groups in which they can include us at any time, but is it legal?
It would be illegal to include anyone in a WhatsApp group if we do not have the consent or permission to do so. Then and thanks to our fellow Legálitas we have a real case.
The restaurant organized a WhatsApp group for the reservation of New Year’s Eve dinners, which included a list with the names and surnames of the attendees and companions, as well as the tables where they should take a seat. Even diners were prevented from leaving that group, notifying them that if they left the group they would lose the reservation immediately.
Contrary to the provisions of the LOPDE, this publication was made without the prior approval of the interested parties. The Constitutional Court has ruled on the treatment of personal data without the consent of the interested party considering as a characteristic element of this fundamental right the obligation to obtain the consent of the affected party for the collection and processing of their personal data unless there is a legal authorization that exempts from this requirement.
In addition, the data controller (in this case the restaurant) is responsible for proving that this consent has been obtained in the correct manner. During the administrative procedure, the Agency considers it proven that the company has infringed Article 6 of the LOPD, since it had not obtained the consent of the owners to include them in said WhatsApp group or to publish in it the same personal data providing third parties not interested access to them, so it would be committing a serious offense.
This entity is perceived to cease this behavior and not re-create/organize WhatsApp groups of diners or disseminate through the same personal data without the express consent of those affected in this case customers from the restaurant itself.
After this resolution, which ends the administrative process, we can consider that it would be illegal to include any person in a WhatsApp group if we do not have the consent or permission to do so.