Legal disclosure of the debtor's data

Waiting for the receipt of payment for the provided service or delivered goods has its limits. The creditor's patience mainly depends on the situation in which he finds himself. If he cannot cope with the debtor himself, he has the right to transfer the case to a debt collection company, as well as sell the debt on the debt exchange. However, is it possible to disclose the debtor's data?

Debtor's reminders and requests for payment

An entrepreneur whose contractor is in arrears with payment has the right to summon the contractor for payment by means of SMS messages, written reminders or letter requests for payment. For this purpose, it may use the data indicated by the contractor on the invoice without the need to obtain a separate consent to use them in order to claim its receivables. Pursuing claims for sales performed as part of business activities is a legitimate goal.

Assignment of receivables

A contractor who no longer has the strength to claim the money due to him from an insolvent client may sell the debt. Importantly, the debtor's consent is not required here.

Art. 509 of the Civil Code § 1 The creditor may, without the consent of the debtor, transfer the claim to a third party (transfer), unless this would be contrary to the law, a contractual reservation or the nature of the obligation. § 2 Along with the debt, all rights related to it, in particular the claim for overdue interest, are transferred to the buyer.

The sale of debt takes place on the basis of the transfer of receivables (assignment of receivables) to another buyer. In the case of a sale of debt based on a debt transfer agreement, disclosure of the debtor's data is deemed necessary for the performance of the agreement. Therefore, there are no grounds to conclude that in the case of the sale of receivables (which do not require the consent of the debtor) by indicating the debtor, the rights relating to the protection of personal data are violated.

“In the case of a declaration of will to conclude a contract for the sale of receivables, it is indisputable that the receivable should be specified. Sufficient identification of the claim is a necessary condition for it to become a disposable object. There is no claim "for itself", i.e. in isolation from the parties: creditor - debtor. " - justification published by GIODO.

A debt collection company that purchased a debt for resale has the right to publish the debtor's data containing:

• name,
• last name,
• place of residence.

This data is necessary to determine a given claim.

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However, as GIODO (Inspector General for Personal Data Protection) reserves, disclosing the debtor's data in the debt sale offer regarding the debtor's exact address would be an excessive encroachment on the debtor's privacy.

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Disclosure of the debtor's data to the debt collection company

The creditor does not always sell the debt to the debt collection company. The service of the entity dealing with the recovery of receivables may consist in the service of unpaid receivables themselves. Then, in the light of the Act on the Protection of Personal Data, the creditor acting as the data controller may entrust the personal data of his debtors to the debt collection company and will not be punished for disclosing the debtor's data.

Entrusting pursuant to Art. 31 of the Act should take place by way of a written contract, which is obliged to define, first of all, the scope of data and the purpose for which they will be used.

Entrusting data does not transfer the functions of the data administrator from the creditor to the debt collection company, but only causes that the entity to whom the data has been disclosed is responsible for their security and undertakes to process this data only to the extent and for the purpose specified in the entrustment agreement.

To sum up, debtors who are in arrears with the payment of amounts due to their contractors must take into account that the consequence of such proceedings may be the disclosure of their personal data (disclosure of the debtor's data), in particular with regard to the name and surname, among others in publicly available debtors' databases. Importantly, it will not require their personal consent.