2.000,00 € compensation for pain and suffering due to incomplete information

Time and again, German courts deal with claims for information. If requests for information are not fulfilled, this usually results in a claim for damages for pain and suffering. In a labour law case, the Berlin-Brandenburg Regional Labour Court valued the breach of two information requests at a total of €2,000.00.

How extensive must a request for information be?

The plaintiff was an employee of a care company. The defendant wanted to transfer the plaintiff in 2019 after consulting the works council. Also in 2019, the defendant issued a warning to the plaintiff.

The plaintiff requested the defendant to provide information pursuant to Art. 15 GDPR concerning the transfer and the warning. The defendant also provided the plaintiff with information, at least to a certain extent.

The plaintiff turned to the Labour Court and sought damages for pain and suffering totalling € 8,000.00 because, in his opinion, the information was incomplete.

The Berlin Labour Court dismissed the action. On the plaintiff's appeal, the Berlin-Brandenburg Regional Labour Court ordered the defendant to pay a total of € 2,000.00.

When is information complete?

According to the Regional Labour Court, the information provided by the defendant was recognisably incomplete. The defendant sent a letter from the defendant and a letter from the works council regarding the complex "transfer". With regard to the complex "warning", the defendant sent an application for the issuing of a warning and a so-called "logbook entry".

Thus, the defendant only fulfilled the plaintiff's right to information with regard to Art. 15(1)(a) and (b) GDPR, but not the more extensive Art. 15(1)(c) to (g) GDPR. The defendant could have determined what the plaintiff was asking of it by simply looking at Art. 15(1) GDPR. The defendant is therefore also responsible for the insufficient information and thus for the violation of Art. 15(1) GDPR.

Information must therefore contain all the details listed in Art. 15(1)(a) to (g).

Can I claim compensation for pain and suffering if the information is incomplete?

The answer is quite clearly: Yes!

In essence, a right to information is about the data subject obtaining sufficient knowledge about the processing of his or her personal data. If the information is only incomplete, the data subject cannot check, or can only check with difficulty, whether his or her personal data are being processed lawfully. According to recital 146 p. 3 of the GDPR, this breach of the right to information can only be remedied by a complete disclosure. 3 GDPR, this breach of the right to information can only be compensated by full and effective damages. A "materiality threshold" does not have to be exceeded for a claim for damages.

How much compensation can I claim for pain and suffering?

Taking into account recital 146 p. 3 of the GDPR, infringements of the GDPR should be effectively sanctioned and have a deterrent effect in order to help the GDPR achieve its breakthrough.

In the case at hand, the Regional Labour Court considered an amount of € 1,000.00 per request for information, i.e. a total amount of € 2,000.00, to be appropriate. This amount would enforce the provision of Article 15 of the GDPR and oblige the defendant to comply with the corresponding requirements. The originally requested amount of €8,000.00 was too high.

How do I react correctly to requests for information?

The decision of the Regional Labour Court impressively shows that you must give the issue of requests for information a high priority in your company. In the future, you will probably have to expect more requests for information from former employees in the field of labour law.

Some victims may be solely interested in the payment of damages for pain and suffering due to false or incomplete information. Even if this request is likely to be abusive in principle, you will hardly be able to prove this intention. You should therefore not take this possibility as an opportunity to refuse to provide information or to provide it only incompletely.

You should therefore always take requests for information seriously and seek legal advice in cases of doubt. Please also always keep an eye on the one-month deadline pursuant to Art. 12 (3) sentence 1 DSGVO.

The mere expiry of the one-month period pursuant to Art. 12 (3) sentence 1 of the GDPR is also likely to trigger a claim for damages.

Source: LAG Berlin-Brandenburg, judgement of 18.11.2021, ref. no. 10 Sa 443/21

                  ArbG Berlin, Judgement of 21.01.2021, Ref. 27 Ca 11237/19

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GoldbergUllrich Lawyers 2022

Julius Oberste-Dommes LL.M. (Information Law)

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Specialist lawyer for information technology law