Fonte: DLA Piper
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.
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