The Local Court (Amtsgericht) Diez (in a final decision dated 7 November 18, case number 8 C 130/18) was the first German court – and as far as we know the first court EU-wide – to decide on a claim for immaterial damages under Art. 82 (1) GDPR. The main question was how to calculate a claim for immaterial damages caused by a single email that violated the provisions of the GDPR.
Noticeable impairment required
On 25 May 2018, the plaintiff received an email from the defendant requesting his consent to an email newsletter. In Germany, this is considered spam and also a GDPR violation. The plaintiff claimed compensation for immaterial damages to the amount of € 500.00 from the defendant pursuant to Art. 82 (1) GDPR.
The court dismissed the action because the plaintiff had already received an ex gratia payment of €50.00 from the defendant and a compensation for immaterial damage going beyond this amount was no longer reasonable.
According to Art. 82 (1) GDPR, a mere infringement of the GDPR without causing damage would not lead directly to liability of the controller. Although a serious violation of personal rights is no longer necessary (as it was under German law before), the data subject must have experienced a noticeable disadvantage and it must be an objectively comprehensible impairment of personal rights with a certain weight.
If a claim for immaterial damages existed, this had been compensated with the payment of €50.00 accepted by the defendant. Therefore, the case was dismissed.
€50,00 times X?
€50.00 does not seem much in the individual case. However, the controller will typically not send such emails to individual persons only, but rather to hundreds or thousands of addressees and could therefore be exposed to significantly higher damage claims.
Besides it cannot be excluded that the newly introduced mechanism to level the ground for a group action in Germany (Musterfeststellungsklage), may be used to enforce damage claims for violations of the GDPR. Consumer protection organizations may try to have the infringement determined by a court and conclude a settlement for the registered consumers. These “multipliers” should be considered when planning email advertising campaigns.
Chance missed for initiation of preliminary ruling proceedings
Furthermore, the Local Court Diez rejected the plaintiff’s opinion that it had an obligation to refer the case to the Court of Justice of the European Union (CJEU) under Art. 267 TFEU, as it did not see the scope of application opened up. However, the court disregarded the fact that the GDPR also falls under the acts of an institution and the scope of application would therefore have been opened up. Art. 267 TFEU indisputably covers the entire Community secondary law. Thus, the Local Court Diez missed the opportunity to refer the question of calculation of immaterial damages under Art. 82 (1) GDPR to the CJEU.
For further information please contact Jan Spittka (Senior Associate, Cologne).