The Fourth Department of the Council of State ruled that during the pre-election period the candidates, in the context of their political communication with the voters, can send SMS and e-mails to the citizens of the constituency and this is because there is a legislative gap on the subject in question.
In particular, the CoC annulled fines of 3,000 euros that had been imposed on three MP candidates by the Personal Data Protection Authority for illegal processing of personal data.
The fines concerned the pre-election period of the parliamentary elections of September 2019 and were imposed on Theodoros Fortsakis and Dimitris Kouvelas, as well as Ioanna Kalantzakou – Tsatsaroni.
More specifically, in the Authority there were complaints that during the pre-election period of 2019 by these three were sent to citizens either SMS (messages on mobile phone), or e-mail (messages on e-mail) or both, for the purpose of political communication of the candidates with the citizens of their constituency.
The Authority then ruled that the disputed SMS and e-mails of the candidates were sent without the prior consent of the recipients, thus violating paragraph 3 of Article 11 of Law 3471/2006 on the protection of personal data and privacy in the sector. of electronic communications and imposed fines.
However, Messrs. Fortsakis and Kouvelas, as well as Mrs. Kalantzakou – Tsatsaroni appealed to the CoC asking for the cancellation of the fines, arguing that political messages are excluded from the restrictions set by law 3471/2006 on the prior consent of the recipient.
Finally, the CoC, chaired by the State Counselor Efthymios Antonopoulos and rapporteur Magdalini Fasilaki, annulled the decisions of the Authority, as it considered that they lack legal basis.
The CoC with its decisions no. 1343-1345 / 2022 ruled that the communication of the candidate during the pre-election period does not fall within the regulatory scope of article 11 par. 1 of law 3471/2006. The court rulings point out that in order to limit the candidate candidate’s communication with the voters of the constituency in which he is running, which is necessary for the functioning of the democratic state, a special regulation is required and they add that such a special regulation cannot Article 11 par. 1 of Law 3471/2006 (as interpreted by the Authority), which regulates communications for the purpose of direct commercial promotion of products or services and for any kind of advertising purposes and that in the disputed provision of Law 3471/2006 however, the communication of the candidate during the pre-election period falls “.