- Dresden Higher Regional Court rejects non-material damages for minor infringements under Art. 82 GDPR
- Art. 82 does not establish a claim for every individually perceived inconvenience without serious impairment.
- Exception possible in the case of large-scale, unlawful commercialization that affects many people equally.
- Significant risks of abuse speak against an almost unconditional claim for damages in data protection law.
In a decision of the Dresden Higher Regional Court (OLG) dated June 11, 2019 (at de lege data available as PDF) contains interesting comments on Art. 82 GDPR (damages). The case concerned a trivial matter, namely a three-day blocking of a blog by setting it to read-only mode (“The alleged inhibition of the development of personality due to the three-day blocking is at most of a minor nature”). The OLG states in this regard:
Even if in the literature, with reference to recital 146 of the GDPR, the view is occasionally expressed that effective enforcement of European data protection law requires a deterrent effect and the waiver of the […] under previous law, this justifies no compensation for immaterial trivial damages. It is true that data protection law per se protects a subjective right that has a strong connection to the personal feelings of the individual. Nevertheless, Article 82 is not to be interpreted in such a way that it gives rise to a claim for damages already in the case of every individually perceived inconvenience or in the case of petty infringements without serious damage to the self-image or reputation of a person. […] This may be different in cases in which the data protection law infringement has a affects a large number of people in the same way and is an expression of deliberate, illegal and large-scale commercialization. However, this is not the case here. It is true that the commercialization of user data is part of the defendant’s business model; however, the blocking of the plaintiff’s account does not promote this commercialization, but rather hinders it, because the plaintiff does not “produce” any data during this time that the defendant could exploit. The following also speaks against an extension of the non-material damages to petty damages the considerable risk of abuse that would accompany the creation of a claim for damages for pain and suffering with virtually no preconditions on the legal consequences side, particularly in the area of data protection law.