The creditor has the right to include the recalcitrant debtor in a register of defaulters. For many years, various asset solvency files have existed in Spain, colloquially called debtors’ registers. Currently, the organic law on the Protection of Personal Data and Guarantee of Digital Rights (LOPDGDD) calls them credit information systems. These types of default records are of restricted scope, and for decades they have been used by banking entities, basic service companies, credit card issuers and telecommunications companies.
These delinquency files usually include the data of natural and legal persons who have defaulted on their credits or loans. Personal data of people related to non-compliance with monetary, financial or credit obligations can be lawfully included if they meet two fundamental conditions: first, that the data refers to certain, due and payable debts, the existence or amount of which would not have been subject to an administrative or judicial claim by the debtor or through an alternative dispute resolution procedure binding between the parties; and the second, that the creditor has informed the affected party in the contract or at the time of requesting payment about the possibility of inclusion in said systems, indicating those in which they participate. Furthermore, the company in charge of processing the files must notify the affected party of the inclusion of their data, as well as informing them of the possibility of exercising their data protection rights within thirty days following notification of the debt to the system, the data remaining blocked during that period.
With respect to defaulter files, in a recent resolution, the Supreme Court has established that to include a client in a defaulter registry, the debt must be certain and payable. Likewise, the Supreme Court addresses the sending of customer data by banks to the Risk Information Center (CIRBE) of the Bank of Spain and highlights that only overdue, liquid and demandable debts can be included. The Court makes clear its criteria regarding the incorporation of clients in these files by companies and determines that it is only appropriate to include those debtors who, without justification, refuse or are unable to pay their debts, and excludes those who have legitimate disagreements with the creditor about the existence or amount of the debt. The High Court is of the opinion that disclosing the debtor’s personal data in these records constitutes illegitimate interference when the non-payment is not linked to the debtor’s solvency, but to his disagreement with the certainty, existence or amount of the debt. In such cases, inclusion in the registers could be seen as illegitimate pressure on those affected to pay a debt they have disputed.
