A Sanction imposed to a Telephone Company for Contacting Users in the “Do Not Call” Registry is confirmed

A telephone company filed a lawsuit against the Agency of Access to Public Information (AAIP), to request the nullity of a resolution the AAIP had issued. In it, the AAPI had imposed a penalty equivalent to ARS 3,000,000, resulting from the company’s committing 208 severe infringements and one moderate infringement:

1. Contacting 208 telephone users properly registered in the “Do Not Call” Registry, by calling them to advertise, offer, sell, or give away goods or services.
2. Not properly providing the information the AAIP required.

The first instance court rejected the plaintiff’s claim. The case was declared as a matter of law, because there was no evidence pending production and because there were no disputed facts. The court considered that requiring each of the complainants to provide proof of their incoming calls would be a much more burdensome situation for consumers' privacy than requiring the telephone company to provide the data, as controller of the database. Consequently, the resolution of the AAIP was confirmed and, therefore, the imposition of the sanction.

The telephone company appealed this ruling, claiming that the court’s arguments to reject the claim were not enough, and that the court did not properly analyze all the evidence the company brought.

On April 22, 2024, Division II of the Federal Court of Appeals in Administrative Matters rejected the appeal and upheld the first instance ruling. In deciding so, the Court referred to the relevant legal framework, adhering to what was established in the first instance ruling, and added that the plaintiff, in its claims, showed a lack of grounds and evidence to discredit the administrative proceedings. In addition, the Court highlighted that the plaintiff did not question the constitutionality of the rule imposing the obligation to provide in due time and form the information requested by the AAIP in the exercise of the powers attributed to it. Thus, the telephone company could not dogmatically invoke this type of defense at this instance.

Finally, the Court also made a distinction, establishing that the infringement is committed by merely breaching the service providers’ duties or obligations, regardless of whether they prove the existence of damages, and regardless of the company’s malice or negligence in acting.