The protection of a person’s right to honour in the event that their personal data are entered in debtors’ files is a legal issue that has been the subject of regular debate for years

The jurisprudence of the Supreme Court has been analysing and establishing interpretative criteria of the conditions for the existence or non-existence of an infringement, which can be summarised as follows:

1. The fact that the amount of debt recorded in a debtor’s file is higher than the actual debt does not constitute grounds for considering that there has been an infringement of the right to honour.

The reason for this interpretation is that what is protected is a person’s right to honour in the case of being wrongly registered as a debtor. In this case, there is a violation given that this wrong registration as a debtor is a relevant downgrade. However, if a person is registered with an inaccurate debt, this requires rectification of the wrong data but it is not an infringement of the right to honour in itself because this person is in fact a debtor and therefore it is correct that thay are registered.

2. The payment order has a functional character covering the need to avoid registering as debtors those persons who, due to a simple oversight, a banking error of which they are unaware, or any similar circumstance, have failed to pay a financial obligation without this information being relevant to assess their solvency.

However, the payment order is not really necessary if the person knows the reality of the debt and does not pay it, given that in this case they are aware of the possibility of being included in a debtor’s file.

Additionally, if the payment order contains a higher amount of debt than the correct debt, this does not mean that it is not valid for the purpose of justifying the person’s inclusion in a debtors’ file. If a person does not pay the correct debt and is therefore in default, they can be registered and the demand is valid, regardless of the specific amount of debt.

3. In this regard, a key element valued by the case law, is that the person has been passive with respect to the debt, i.e. has not disputed its existence and has not paid. In this case, the person assumes the risk of being entered in a debtors’ file, and there is no infringement of the right to honour.

All these issues are dealt with in the recent Supreme Court Judgement no. 280/2024 of 27 February 2024, which analyses a case of protection of the right to honour in the case of inclusion of personal data in a debtors’ file. The conclusion is that there is no violation because the appellant was a debtor and did not dispute the debt itself, but rather disputed that the amount of the payment order and the amount registered was incorrect.

MAY 2024

MARÍA ELÍAS
Associate