Update on damages in GDPR and privacy claims | Fieldfisher
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Update on damages in GDPR and privacy claims



The Irish Circuit Court delivered judgement this week in a case which provides some clarity in relation to the level of compensation in cases involving non-material damage.
This is the first written decision in this jurisdiction to consider the value of these claims. The award of €2,000 was made in circumstances where the court found that (i) was an infringement of the plaintiff's rights under the GDPR (ii) the plaintiff suffered non-material damage resulting from that infringement and (iii) there was a causal link between the damage and the infringement.

The claimant was employed by the defendant. During a training exercise to highlight poor work practices in the organisation, CCTV was shown to a group of employees. The plaintiff was identifiable in that footage. He alleged that the processing and use of the CCTV footage amounted to unlawful processing of his data in breach of Ireland's Data Protection Act 2018 and the GDPR. The claimant alleged that he suffered anxiety, embarrassment and sleep disturbance. Importantly, he did not corroborate these claims with medical evidence. The defendant denied any breach and argued that the plaintiff's data was processed in accordance with its data protection policy.

In addressing the issue of quantum, the court relied on the case of
UI v Österreichische Post (Case C-300/21). The court considered that the following factors were relevant in assessing compensation for non-material loss:-
  • if the damage is non-material, it must be genuine and not speculative;
  • damages must be proved. This can be done by way of oral evidence. Supporting evidence (such as a medical report) is considered strongly desirable but not essential;
  • an apology may be relevant in consideration of the mitigation of damages; and
  • damages will generally be modest in case of this nature.
Importantly, the decision does not make any reference to costs being awarded to either party. The issue of costs will need to be determined by the court and will strongly influence the extent to which lawyers find it commercially attractive to prosecuting claims of this nature.

Written by: Killian O'Reilly and Neil Cahill


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