More and more frequently, court decisions on the amount of a claim for damages for violations of the GDPR are emerging. Now, the Higher Regional Court of Cologne has awarded a plaintiff €500.00 in damages due to a delay in providing information pursuant to Art. 15 GDPR.
How quickly must a request for information be responded to?
In the case at hand, the plaintiff asked her former lawyer in early January 2020 for information pursuant to Article 15 of the GDPR and for the handover of the lawyer's file. The plaintiff sued her former lawyer before the Regional Court of Bonn for this claim and other claims. The defendant lawyer did not provide the requested information until October 2020.
According to Art. 15 (1), 12 (3) sentence 1 DSGVO, information must be provided within one month.
What happens if the information is not provided or is provided too late?
According to the Bonn Regional Court, the late provision of information had no effect and dismissed the plaintiff's claim for damages. A claim for damages under Art. 82 GDPR would only exist for unlawful processing of personal data, but not for breaches of the duty to provide information.
The Cologne Higher Regional Court, as the court of appeal, took a different view. Article 82 (1) of the GDPR refers to a "breach of the Regulation" and not to data processing in breach of the Regulation. However, if the protection of the data subject is to be strengthened precisely through rights of access and information, this would, in the opinion of the OLG, decisively speak in favor of applying the claim for damages under Art. 82 (1) GDPR for every breach of the GDPR.
Are there damages for any late information?
The Bonn Regional Court did not have to rule on this question. The OLG Cologne first pointed out that it is disputed in literature and case law whether the mere violation of a provision of the GDPR is sufficient for a claim for damages under Art. 82 (1) GDPR or whether, in addition, the occurrence of a concrete damage must be presented and, if necessary, proven.
In the present case, the plaintiff had made extensive submissions on the effects of the delayed information. At the heart of the matter was a traffic accident that the plaintiff's former attorney was supposed to settle. After termination of the mandate, a new lawyer was to continue the settlement. Due to the delay in providing the information and handing over the file, the plaintiff was very concerned that the settlement of her accident claim would be jeopardized. This concern had weighed heavily on the plaintiff, which was sufficient for the OLG Cologne as a concrete effect of the delayed information.
What is the appropriate amount of damages for late disclosure?
The Cologne Higher Regional Court considered the amount of damages sought by the plaintiff of €500.00 to be appropriate. In the plaintiff's favor, the defendant's intentional conduct and the consequences were to be taken into account. On the other hand, the Cologne Higher Regional Court would probably not have awarded the plaintiff more than €500.00. The provision of the information had apparently been delayed by an illness of the defendant. The plaintiff's data was also not made accessible to any third party.
What do you need to know about information and compensation for pain and suffering?
- If you are on the side of the party requiring information: Take every request for information seriously, even if the person concerned does not use the word "information". Furthermore, be sure to remember the one-month deadline! Even one day of delay triggers a claim for damages. Therefore, in case of doubt, seek advice. Depending on the scope and impact of the request for information, the claim for damages can easily amount to several thousand euros. Furthermore, the late provision of information may trigger a fine pursuant to Art. 83 (4) GDPR.
- If you are on the side of the person concerned: In any case, you should document the possible effects of the delayed information. You may be threatened with "real" damage because you can only assert your own claims with the help of the information. If you are psychologically impaired, have your mental stress certified by a doctor. This applies in particular if you have to take additional prescription drugs.
- You must be prepared for the fact that some courts place high demands on the presentation of the effects of delayed information. In this case, you are armed.
- Finally, you should seek legal counsel. Your advisors can tailor an information request to your situation and get the best deal for you.
We will be happy to support you in responding to a justified request for information appropriately and in a timely manner. We will also help you to formulate a request for information and, if necessary, to claim damages for late and/or incorrect information.
Sources: OLG Cologne, judgment of July 14, 2022, Case No. 15 U 137/21; LG Bonn, judgment of July 01, 20221, Case No. 15 O 356/20
GoldbergUllrich Lawyers 2022
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and specialist in information technology law
