– the principle underlying Austrian law must be adhered to, namely that mere discomfort and feelings of unpleasantness must be borne by everyone without any consequence in terms of compensation. – since Austrian law is applicable as a supplement to the GDPR, only damage that goes beyond the upset or the feelings (‘Gefühlsschaden’) caused by the breach of the applicant’s rights is eligible for compensation It ruled that compensation for non-material damage does not automatically accompany every breach of the GDPR and that: The appellate court confirmed the first-instance judgment. The first-instance court dismissed UI’s claim for compensation. ( 7)ġ3. In addition, Österreichische Post’s conduct caused him great upset and a loss of confidence, and also a feeling of public exposure.ġ2. UI claims that the political affinity attributed to him is insulting and shameful, as well as extremely damaging to his reputation. UI has claimed compensation of EUR 1 000 in respect of non-material damage (inner discomfort). UI, who had not consented to the processing of his personal data, was upset by the storage of his party affinity data and angered and offended by the affinity specifically attributed to him by Österreichische Post.ġ1. Those data were not transferred to third parties.ġ0.
From that extrapolation it emerged that UI had a high affinity with one of those political parties. UI is a natural person in respect of whom Österreichische Post carried out an extrapolation, by means of statistical calculation, in order to determine his classification within the possible target groups for election advertising from various political parties.
With the assistance of an algorithm, it defined ‘target group addresses’ according to certain socio-demographic features.ĩ. From 2017 onwards, Österreichische Post AG, an undertaking which publishes address directories, collected information on the political party affinities of the Austrian population. Facts, dispute and questions referred for a preliminary rulingĨ. ‘Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.’ Paragraph 1 of Article 82 (‘Right to compensation and liability’) states: ‘Without prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Article 77, each data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation.’ħ. Paragraph 1 of Article 79 (‘Right to an effective judicial remedy against a controller or processor’) provides: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes Ħ. Processing shall be lawful only if and to the extent that at least one of the following applies: Article 6 (‘Lawfulness of processing’) reads: Recitals 75, 85 and 146 of the GDPR are of particular relevance to this dispute.ĥ. Under the GDPR, actions for damages have gained in importance. ( 5) Their increase is noticeable in the courts of the Member States and is reflected in associated references for a preliminary ruling. ( 6) In this reference, the Oberster Gerichtshof (Supreme Court, Austria) asks the Court of Justice to define a number of common points of the rules on civil liability laid down by the GDPR.Ĥ. The possibility of relying on that right before the courts already existed under the previous legislation (Article 23 of Directive 95/46/EC ( 3)), although it was rarely exercised. ( 4) Unless I am mistaken, the Court never interpreted that article specifically.ģ.
Regulation (EU) 2016/679 ( 2) grants any person who has suffered material or non-material damage as a result of an infringement of its provisions the right to receive compensation from the data controller or processor.Ģ. (Reference for a preliminary ruling – Protection of personal data – Regulation (EU) 2016/679 – Non-material damage resulting from unlawful processing of data – Conditions for the right to compensation – Damage above a certain threshold of seriousness)ġ. From the Oberster Gerichtshof (Supreme Court, Austria))
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