View source for AG Diez 8 C 130/18 7.11.2018

[[Category:2019]]
{| class="wikitable" style="width: 25%; margin-left: 10px; float:right;"
! colspan="2" |AG DIez - 8 C 130/18 vom 7.11.2018
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| style="padding: 20px;" colspan="2" |[[File:Banner.jpg|alt=|center|250x250px|Banner]]
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|Court:||[[:Category:AG Diez (Germany)|AG Diez]]

|-
|Country:
[[Category:LG Feldkirch (Austria)]]|[[Data Protection in Germany|Austria]]
[[Category:Austria]]
|-
|Relevant Law:||
[[Article 6 GDPR]] 
[[Category:Article 9(1) GDPR]] 

[[Article 4 GDPR#11|Article 82 GDPR]] 
[[Category:Article 82 GDPR]]

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|Decided:||7.11.2018

|-
|Published:||yes
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|Parties:||n/a
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|National Case Number:||8 C 130/18
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|European Case Law Identifier:||n/a
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|Appeal:||n/a
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|Language:||German
[[Category:German]]
|-
|Original Source:||[https://openjur.de/u/2116788.html]openjur.de
|}

The Local Court of Diez ("AG DIez") rendered a decision about the potential damages under [[Article 82 GDPR]] for spamming. The claimant received a spam email and sued the defendant for EUR 500,-- in damages. 

==English Summary==

===Facts=== 
A person received a spam email and asked from the sender a total amount of damages of EUR 500,--; the defendant acknoledged the claim in the amount of EUR 50,-- and the claimant still pursued the claim for an additional amount of at least EUR 500,-- of immaterial damages.

===Dispute=== 
The defendant contested the claim and asked the court to dismiss the claim. The defendant argued that the claimant had not suffered any damages. 
===Holding===
The court held that the infringement of GDPR as such without damages as a consequence thereof will not give rise to a claim for damages. 

==Comment==
''You can add your comments here!''

==Further Resources==
''Information on [https://www.dataprotect.at/2018/11/20/schadenersatz-für-ein-spam-mail/]dataprotec.at in German.''

==See also==
<br />

==English Machine Translation of the Decision==

The decision below is a machine translation of the original. Please refer to the German original for more details.
 1. The complaint is dismissed to the extent that it goes beyond the partial acknowledgment of 07.09.2018.
 
 2. The plaintiff bears in advance the costs incurred by the appeal to the Koblenz District Court, which has no jurisdiction; the remaining costs of the litigation are offset against each other.
 
 3. The judgment is provisionally enforceable.
 
 4. The value in dispute will be set up to € 1,000.00 by September 6, 2018 and up to € 500.00 from September 7th, 2018.
 
 5. The appeal is not allowed.
 
 reasons
 
 To the extent that is still the subject of the dispute, the lawsuit - unless it has been declared to be settled in agreement and unless it has already been decided by a partial judgment of 07.09.2018 - is not justified.
 
 The plaintiff is wrongly asking the defendant, who has already recognized an already convicted amount of € 50.00 (in addition to litigation interest), to pay further pain and suffering, for which he claims that a total amount of pain or suffering of at least 500.00 € should be regarded as appropriate.
 
 However, the court sees no basis for this.
 
 The applicant, on 25/05/2018 - Known as the DSGVO validity - received by the defendant an inadmissible complained email, wants its derived therefrom damages claim in the present without success to Art. 82 supporting paragraph 1 DSGVO under which any person who because of a violation of the GDPR (here: Art. 6 GDPR) a material or immaterial damage has occurred, is entitled to compensation against the person responsible.
 
 This already shows that a mere violation of the GDPR, without causing damage, does not result in one. Liability leads; the violation of the provisions of the GDPR alone does not lead directly to compensation (Schaffland / Wiltfang, Art. 82 GDPR No. 5; Plath, Art. 82 GDPR No. 4 d mwN).
 
 On the one hand, a serious violation of personal rights is no longer necessary. On the other hand, there is still no allowance for a minor violation without serious impairment or for any just individually perceived inconvenience; rather, the person concerned must have suffered a noticeable disadvantage and it must be about an objectively comprehensible, with a certain weight, impairment of personality-related issues (Plath, Art. 82 GDPR margin no. 4 c, d).
 
 Based on these principles, the court in the present case shares the defendant's view that a claim for pain and suffering, if it existed, should be regarded as having been settled with the recognized amount (this is also the reference made by the Koblenz Regional Court of July 31, 2018). What the plaintiff complained about was limited to a single e-mail from the defendant, with which she, on May 25, 2018, when the GDPR came into force, asked for consent to receive the newsletter, which is why In the present case, a further compensation for pain and suffering would no longer have been appropriate.
 
 The court does not see the obligation to submit to the ECJ accepted by the plaintiff. The scope of Article 267 TFEU - decision on the interpretation of the contracts or on the validity and interpretation of the acts of the institutions, bodies or other bodies of the Union - is not affected. Contrary to the questions formulated in the plaintiff's written statement of September 13, 2018, a decision on the individual case and a generalized view is not accessible as to which immaterial damages are appropriate.
 
 In all its contested scope, the complaint had to be dismissed.
 
 This also applies insofar as the plaintiff requests interest on pain and suffering not only as recognized, but from as early as May 25, 2018; the provision of § 849 BGB cited by him in this respect is limited to cases in which the loss of value is to be replaced due to the confiscation of a thing or the loss in value is to be replaced and is therefore not relevant here.
 
 The decision on costs is based on sections 281 (3) sentence 2, 91 a (1) and 92 (1) ZPO. The defendant cannot rely on § 93 ZPO with success. It does not matter whether there is a “proper warning”. In any case, the plaintiff's reply to the plaintiff's reply from May 28, 2018 - with the setting of a deadline and a threat of action - unsuccessfully asked her to submit a declaration of injunctive relief, which is why she gave cause for action. Taking into account an original value in dispute of € 1,000.00, which the Koblenz district court initially considered to be appropriate, the result is approximately the same as if the parties had won and lost, so that a cost recovery was appropriate.
 
 The decision on the provisional enforceability is based on §§ 708 number 11, 713 ZPO.
 
 The appeal was not permitted due to a lack of fulfillment of the legal requirements according to § 511 paragraph 4 number 1 ZPO.