The question of how non-material damages pursuant to Art. 82 GDPR are assessed and whether a threshold of materiality must be exceeded for the assertion of such a claim for damages is currently a matter of legal dispute.
How is the amount of the claim for damages under the GDPR assessed?
The amount of the claim for damages in cases of non-material damages is regularly determined at the discretion of the court, as the specific assessment of non-material damages is hardly possible. Among other factors, the deterrent effect of a claim for damages, as provided for by the GDPR, is taken into account in the court's discretionary decision. According to Recital No. 146 of the GDPR, data subjects should receive compensation for the damage suffered. This presupposes that infringements are effectively sanctioned. Claims for damages in cases of data protection infringements therefore aim to have a deterrent effect to ensure the full implementation of the General Data Protection Regulation. Furthermore, courts often consider whether the GDPR infringement was easily avoidable when determining the amount of damages.
Must a threshold of materiality be exceeded for the assertion of a claim for damages?
It is disputed whether a claim for damages for infringements of the GDPR only exists upon reaching a threshold of materiality. This would exempt minor infringements from liability for damages due to a lack of materiality. However, in the opinion of many courts, the assertion of claims for damages does not depend on whether the infringement is material. This is because Recital 146, third sentence, of the GDPR indicates that a broad interpretation of the conditions for a claim for damages is necessary to fully achieve the objectives of the Regulation. It is incompatible with this if liability for damages only applies in material cases, as this would lead to a multitude of scenarios where data subjects would receive no compensation despite infringements of the GDPR. Furthermore, it must be considered that claims for damages by data subjects are intended to have a deterrent effect. For this reason, in the opinion of many courts, there is no need to overcome a threshold of materiality for claims for damages under the GDPR to be valid. However, details on this have not yet been decided by the highest courts.
Source: Higher Regional Labour Court of Berlin-Brandenburg, Judgment of 18.11.2021, Case No. 10 Sa 433/21 (not yet final)
Please feel free to contact us if you wish to assert claims for damages due to the infringement of your personal data or other claims under the GDPR. We look forward to speaking with you. Furthermore, we are gladly at your disposal as consultants in the entire field of IT/IP law.
GoldbergUllrich Attorneys-at-Law 2022
Christopher Pillat, LL.M. (Intellectual Property Law)
Attorney-at-Law
