The question of how non-material damages are measured pursuant to Art. 82 GDPR and whether a materiality threshold must be exceeded in order to assert such a claim for damages is currently a matter of legal dispute.
What is the amount of the claim for damages under the GDPR?
In the case of non-material damages, the amount of the claim for damages is regularly determined at the discretion of the court, as the concrete estimation of a non-material damage is hardly possible. The court's discretionary decision takes into account, among other things, the deterrent effect of a claim for damages provided for by the GDPR. According to Recital No. 146 to the GDPR, data subjects should receive compensation for the damage suffered. This presupposes that breaches are effectively sanctioned. Accordingly, claims for damages for data protection violations aim to have a deterrent effect in order to help the GDPR achieve its breakthrough. Moreover, when determining the amount of damages, courts often take into account whether the breach of the GDPR was easily avoidable.
Does a materiality threshold have to be exceeded for the assertion of a claim for damages?
It is disputed whether a claim for damages for violations of the provisions of the GDPR only exists if a materiality threshold is reached. This would exempt petty infringements from the obligation to pay damages due to the lack of materiality. In the opinion of many courts, however, the assertion of claims for damages does not depend on whether the infringement is significant. It follows from recital 146, third sentence, of the GDPR that a broad interpretation of the requirements for a claim for damages is necessary in order to fully comply with the objectives of the regulation. It is incompatible with this if an obligation to pay damages only applies in significant cases, since a multitude of cases would then be conceivable in which data subjects do not receive compensation despite violations of the provisions of the GDPR. In addition, it must be taken into account that claims for damages by data subjects should have a deterrent effect. For this reason, in the opinion of many courts, it is not necessary to overcome a materiality threshold for claims for damages under the GDPR to apply. However, details on this have not yet been decided by the highest courts.
Source: LAG Berlin-Brandenburg, Urt. v. 18.11.2021, ref. 10 Sa 433/21 (not legally binding)
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GoldbergUllrich Lawyers 2022
Christopher Pillat, LL.M. (Intellectual Property Law)