View source for OLG Innsbruck - 1 R 182/19b

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|Case_Number_Name=1 R 182/19b
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|Original_Source_Name_1=Rechtsinformationssystem des Bundes (RIS)
|Original_Source_Link_1=https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Gericht=&Rechtssatznummer=&Rechtssatz=&Fundstelle=&AenderungenSeit=Undefined&SucheNachRechtssatz=True&SucheNachText=False&GZ=1+R+182%2f19b&VonDatum=&BisDatum=29.06.2020&Norm=&ImRisSeitVonDatum=&ImRisSeitBisDatum=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=&Position=1&SkipToDocumentPage=true&ResultFunctionToken=c174fd4c-d1f8-40f0-b5a1-5472e8f01fd0&Dokumentnummer=JJR_20200213_OLG0819_00100R00182_19B0000_001
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|Date_Decided=13.2.2020
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|Year=2020

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|GDPR_Article_1=Article 82 GDPR
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|Party_Name_1=Christian Wirthensohn
|Party_Link_1=
|Party_Name_2=Österreichische Post AG
|Party_Link_2=https://www.post.at/
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The Oberlandesgericht (OLG) of Innsbruck held that the right to compensation in accordance with article 82(1) GDPR is subject to two cumulative conditions. They must be met by the data subject for them to have the right to obtain compensation.

==English Summary==

===Facts===
The plaintiff, data subject, argued that the defendant, data controller, had violated their rights by processing information about their political opinions, a special category of personal data prohibited from processing in accordance with article 9 GDPR, thus causing non-material damage to them. Therefore, the plaintiff exercised their right to receive compensation resulting from article 82(1) GDPR, asking for the data controller to be held liable for the damage caused to them by the data processing which infringed the GDPR.

===Dispute===
Should a breach of GDPR provisions by a data controller be automatically considered to have caused a damage for the data subject whose data was processed unlawfully, thus granting them the right to compensation as set out in article 82(1) GDPR?

====Plaintiff====
The plaintiff argued incorrect legal assessment of the case by the by the LG Feldkirch. Also, he argued that substantial facts of the case had not been established by the LG Feldkirch and that he should have been awarded the whole amount that he sued for (€ 2.500).

====Defendant====
The defendant also argued incorrect legal assessment of the case, as - in its point of view - there had been no processing of special categories of personal data and no actual (emotional) damage occured. It argued that the plaintiff had failed to state, why and in what regard he had actually sufferd emotional damages. Consequently, the LG Feldkirch had only found, that certain GDPR provisions have been violated, but had not establised what acutal emotional damage the plaintiff had suffered.

===Holding===
The OLG of Innsbruck rejected the claim and gave reason to the data controller, holding that the data subject had not sufficiently proved that they had suffered of a non-material damage caused by the infringement of the GDPR. The data subject should have been able to cumulatively prove the disadvantage in life and the impairment of personality rights that the breach of the law by the data controller caused for them. Only then could it have been considered that they had suffered a non-material damage and could they have claimed their right to compensation resulting from article 82(1) GDPR.

==Comment==
As the OLG Innsbruck rejected the claim soley based on the lack of substantiation and proof of the emotional damage sufferd by the plaintiff, it did not give any decision whether or not the claimed amount of € 2.500 was appropriate. Also, it did not give any ruling to the question, if the processing of the plaintiff's likeliness of his political affiliation qualified as processing of special categories of personal data under Article 9 GDPR.

This decision has wide legal and factual consequences. From a legal point of view, data subjects sueing for damages in Austria must ensure to subtantiate and prove the manner and intensity of the damages sufferd from unlawful data processing. This especially important for data subject's who also have been subject to the processing of the likeliness of the political affiliation by Österreichische Post AG (allegedly hundreds of thousands Austrian citizens).

==Further Resources==
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==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. 

<pre>


Decision date
13.02.2020
Head

The

Innsbruck Higher Regional Court

as the court of appeal, by the President of the Senate of the Higher Regional Court Dr. Braunias as Chairman and the Judges of the Higher Regional Court Dr. Rath and Mag. Obrist as further members of the Senate in the case of the plaintiff party C***** W*****, represented by T*****, against the defendant party Ö*****, represented by W*****, for EUR 2,500.00 s.A, on the appeals of the plaintiff party (appeal interest EUR 1,700.-- s.A.) and the defendant party (appeal interest EUR 800.-- s.A.) against the judgment of the Regional Court Feldkirch of 7 August 2019, 57 Cg 30/19b-15, in closed session

I. decided:
										

-
	

Saying

The pleadings of 29.1.2020 and 31.1.2020 submitted by the defendant party together with the documents submitted in them (ruling of the Regional Court of Wels of 27.12.2019; ruling of the Regional Court of Karlsruhe of 2.8.2019; decision of the data protection authority of 24.1.2020; e-mail of the Austrian data protection authority of 31.1.2020; e-mail of the plaintiff of 31.1.2020) will be returned.
										

-
	

The applications of the defendant for referral to the ECJ under Article 89 of the Federal Constitution and Article 267 TFEU are hereby rejected.

II. rightly recognized:

The plaintiff's appeal will not be granted.

The appeal of the defendant party is granted.

The contested decision is amended to read as follows:

"1) The claim that the defendant is obliged to pay to the plaintiff to the attention of its representative within 14 days the amount of EUR 2.500,-- plus 4% interest since 2.3.2019 is hereby rejected.

 2. the plaintiff is obliged to reimburse the defendant for the costs of the proceedings at first instance, which are determined at EUR 1,380.46 (including EUR 230.08 VAT), to the attention of its representative within 14 days.

The Plaintiff is obliged to reimburse the Defendant for the costs of the appeal proceedings to the attention of the Defendant's representative within 14 days at the rate of EUR 739.25 (including EUR 99.21 VAT and EUR 144.00 cash expenses).

In any event, the appeal is not admissible.

Text

Grounds of the decision:

The defendant is a logistics and postal service provider. Since 3 April 2001, it has held a trade licence as an "address publisher and direct marketing company" pursuant to § 151 GewO. Since then, it has been engaged in address trading in the course of this trade, selling both target group addresses purchased by it and target group addresses it has collected itself. In addition, the defendant stores data of several million people. It also conducted anonymous opinion polls. In doing so, she anonymously surveyed interview partners on socio-demographic criteria such as gender, age, place of residence, type of residence, formal education, etc., as well as interest in election advertising of political parties. On the basis of these criteria, the defendant formed marketing groups, which usually included several 100 persons or more per group, but at least ten persons per group. For these marketing groups, the defendant subsequently calculated average probabilities in the form of percentages and developed an algorithm to calculate, among other things, the probability that persons with certain socio-demographic characteristics in certain regions might have advertising interests in certain political parties (party affinities). In the same way, the defendant determined probability values for bio, investment, donation and distance trade affinities as well as for life phases of marketing groups. Finally, the defendant assigned individuals to marketing groups and thus assigned "party affinities" and other affinities calculated by the defendant based on their regional and social-demographic characteristics.

The defendant also determined party affinities and other affinities in relation to the plaintiff using the marketing analysis procedures described above and stored these in the category "marketing data". These party affinities and other affinities of the plaintiff were not transferred to third parties by the defendant. However, the defendant did pass on the plaintiff³s address data to third parties.

In the action brought before the court of first instance on 29 March 2019, the plaintiff claimed EUR 2,500.00 s.A. in damages for non-material damage and relied on subsequent conduct of the defendant which, in his opinion, was unlawful:
										

-
	

The defendant processes information about alleged party political preferences of the claimant, i.e. data of special categories: This is personal data because a personal reference has been established.

-
	

The defendant processes data of the claimant, in particular residential addresses which are more than 15 years old and no longer current, as well as details of numerous letters and parcels delivered in the last three years. The accuracy and timeliness of the plaintiff's address data had not been checked for years, which is why the defendant had violated the principle of data accuracy (Art. 5 para. 1 lit. d DSGVO Next search term).

-
	

The defendant also infringed the principle of storage limitation because it stores personal data for several years, up to the age of 90 of the respective person, and thus does not provide for an appropriate storage period (Art 5 Paragraph 1 lit e) Previous search termDSGFORnext search term).

-
	

The defendant is engaged in unlawful profiling, namely the automated processing of personal data to evaluate personal aspects.

-
	

The defendant stores the data in a publicly accessible database, thereby making the applicant's data publicly accessible without any legal basis. At no time did the plaintiff give its consent or authorisation to process the data.

-
	

The defendant violated its duties of information under Art. 14 Previous Search TermDSGVONnext Search Term, as it had not informed the plaintiff of the data processing that had taken place. The mere provision of information on the defendant's homepage was not sufficient.

-
	

The defendant had fulfilled its obligation to provide information pursuant to Article 12(3) and Article 4(7) of the Basic Law (Voriger SuchbegriffDSGVONächster Suchbegriff) belatedly and only incompletely.

The plaintiff had suffered non-material damage, at least in the amount of the sum claimed, as a result of the unlawful processing and transmission or publication of the personal data concerning him. That damage consists of the disgrace caused by the defendant's unlawful and almost careless handling of the applicant's personal and sometimes sensitive data, namely information concerning his alleged affinity with certain political parties. In particular, the applicant was prevented from checking his data. He had irretrievably lost control of the personal data concerning him.

The defendant sought the dismissal of the action. There is no damage that can be compensated. Furthermore, there was no causal cause of damage and the defendant had acted unlawfully and culpably. The claim is unsubstantiated and undetermined. The breach of data protection provisions does not per se constitute damage. A certain weight must be given to impairments in order to be able to speak of non-material damage at all. A general and probability-related average statement made anonymously did not meet the criteria of personal data. Moreover, the defendant has since blocked the plaintiff's data set, so that plaintiff data can no longer be processed for marketing purposes. The storage of former residential addresses was necessary to enable companies to stay in contact with spoiled customers without lengthy and expensive investigations. Finally, the applicant's exercise of his rights is abusive, as he claims a loss of control without having exercised his rights (opposition to processing, restriction of processing, cancellation of data).

In the contested judgment, the first court ordered the defendant to pay damages of EUR 800.00 s.A. The additional claim for payment of EUR 1.700,-- s.A. was, however, rejected.

It based its decision on the findings made on pages 7 to 21 of the judgment (AS 125 - 139), which can be referred to to avoid repetition. In addition to the facts set out at the beginning of this report, the following findings of fact are reproduced below for a better understanding of the appeal decision:

(...)

The plaintiff had a forwarding order set up with the defendant on the occasion of a relocation in 2012.

The defendant offers companies the so-called "ADRESS-CHECK-Service". This enables companies to compare their customer data with the relocation data stored by the defendant and thus to find out the new address of customers who have moved. This allows companies to stay in contact with their spoiled customers without the need for lengthy and expensive investigations. (...) In order to be able to provide the new address to as many companies as possible and to avoid undeliverable mailings, the defendant stores previous residential addresses of persons who have not objected to the use of the data for marketing purposes by third parties for several years.

The defendant stores the following address data of the plaintiff, which it has also passed on to third parties

(...)

The plaintiff has not lived at one of the above-mentioned former addresses for almost 15 years.

The plaintiff sends and receives mailings of all kinds via the defendant's mail and parcel delivery service. In connection with its delivery service, the defendant is regularly confronted with requests from customers or other persons regarding the traceability of past mailings. The Defendant stores shipment information (parcel logistics) for up to three years. Concerning the plaintiff, the defendant stores "parcel logistics data" on 118 shipments from the period October 2016 to November 2018 with shipment number, transport period, recipient and sender.

The defendant also operates an online service, with which the plaintiff registered on 13.6.2011 (...). This service can be used, for example, to track the progress of a parcel or change a delivery option.

By registered letter dated 19.7.2018, the plaintiff sent the defendant (...) a request for information as to whether and, if so, which personal data concerning him are processed by the defendant. At the same time, he requested information on the purposes and legal basis of the processing, the recipients to whom the data were and are disclosed, the storage period and the origin of the data. (...)

Since the defendant initially did not respond to this request for information from the plaintiff, he filed a complaint against the defendant with the data protection authority on 3 September 2018 for failure to provide the information.

(...)

On 3.10.2018, the defendant sent the plaintiff, with reference to his request for information, an information sheet in which it informed him, among other things, that it was processing data relating to him in summary form, in particular for logistics (delivery of items such as letters and parcels), marketing purposes and the address publishing house operated by it. The information contained the indication that the plaintiff may, under certain conditions, request the restriction of the processing as well as the deletion of his personal data or object to the processing. Under one, the defendant transmitted a data sheet concerning the "marketing data" stored by it about the plaintiff with two data sets, a data sheet with one data set stored by it about the plaintiff "ProfileAddress" of the plaintiff, a data sheet with "personal address data" (letter logistics) of the plaintiff stored by it with four data sets and a data sheet with "online service master data" of the plaintiff stored by it. Furthermore, the defendant informed the plaintiff that it had sent relocation information concerning him, namely title, first name, surname, date of birth, old and new address and the date of the relocation, to seven companies specified in the information. In this context, the Defendant informed the Plaintiff that, in the event that the Plaintiff objects to the further use of the data for marketing purposes, these companies will be informed by the Defendant of the withdrawal. (...)

(...)

On the occasion of the plaintiff's registration with the defendant's online service, the defendant sent him a PIN by e-mail on 13.6.2011 and at the same time informed him in extracts as follows

(…)

In a letter dated 25 July 2013, the defendant informed the plaintiff that the forwarding order would end in two weeks due to relocation.

At no time did the plaintiff receive any further information from the defendant on a data processing of the information provided in accordance with the findings of the defendant in response to his request for information or the information contained in the aforementioned letters.

At no time did the Plaintiff give the Defendant its express consent to the processing of data concerning him, in particular with regard to special categories of personal data within the meaning of Art. 9 Previous Search TermDSGNEXT Search Term.

The plaintiff has not exercised his right of opposition or his right of cancellation vis-à-vis the defendant.

(...)

After receiving information from the defendant that it had sent relocation information concerning the plaintiff to seven companies, the plaintiff turned to each of these companies with a request for information. Obtaining information from these companies proved to be difficult. To date, the plaintiff has received information from only one of these companies in response to his requests (...). This information shows that this company has in turn passed on its data to two other companies.

The plaintiff considers his fundamental right to data protection to have been violated by the defendant's data processing and its conduct in connection with his request for information. In particular, the storage of party affinities disturbs him. The plaintiff has not suffered any impairment of health in this connection. Nor has his professional advancement been impaired.

The defendant blocked the plaintiff's stored data record after the complaint was filed, so that the defendant has not used the plaintiff's data for marketing purposes since then.

(...)

From a legal point of view, the first court assumed that the affinities determined by the defendant by means of marketing analysis procedures were "special categories of personal data" within the meaning of Art. 9 para. 1 Previous Search TermDSGOnext Search Term, due to the fact that these affinities were subsequently attributed to the plaintiff as an individual. Political opinions were represented with these data. Since the plaintiff had not given his consent to this, this constituted a considerable violation of the Previous Search TermDSGVONext Search Term, which had adversely affected the plaintiff in his fundamental right to data protection and his associated freedoms in a disturbing manner. The Previous Search TermDSGVONächster Suchbegriff does not establish a materiality threshold for compensation for non-material damage. In view of the fact that, on the one hand, the political opinion of a person is particularly sensitive data which is worthy of protection and, on the other hand, the plaintiff's party affinities stored by the defendant were not transmitted to third parties, immaterial damages in the amount of EUR 800,-- as compensation for the harm suffered by the plaintiff appear to be appropriate. With his further grounds for claim, however, the plaintiff had to be regarded as unsuccessful. No (other) relevant non-material damage could be deduced from this either. The additional request of the plaintiff was therefore to be rejected.

The parties' appeals are directed against this judgment.

The plaintiff contests the part of the judgment dismissing the action and requests that the decision be amended in order to allow the full content of the action.

The defendant challenges the part of the judgment dismissing the action. It also seeks an amendment of the contested judgment, but in the sense of a complete dismissal of the action. In the alternative, it is seeking an application for annulment.

In their responses to the appeal, the parties request that the respective opposing appeal be denied.

I.

1 After the file was submitted to the Appellate Court, two pleadings of the defendants dated 29 January 2020 and 31 January 2020, referred to as "submission of documents", were filed with the Appellate Court. With these pleadings, the defendant submitted several documents, namely a copy of a judgment of the Regional Court of Wels of 27 December 2019, an excerpt of a judgment of the Regional Court of Karlsruhe of 2 August 2019, a decision of the Austrian Data Protection Authority of 24 January 2020, an e-mail of the Austrian Data Protection Authority of 31 January 2020 and an e-mail of the plaintiff of 31 January 2020, and also explained the contents of these documents.

These submissions are inadmissible.

a) Each party shall be entitled to only one appeal or appeal counter appeal. Further appeals, supplements and additions are inadmissible even if they are submitted within the statutory period (RIS-Justice RS0041666).

(b) The first-time submission of documents in appeal proceedings also violates the prohibition of novelty applicable in appeal proceedings. Pursuant to § 482 (2) ZPO, circumstances and evidence, i.e. also documents which, according to the content of the judgment and the trial acts, did not occur in the first instance, may only be presented by the parties in the appeal proceedings for the purpose of explaining or refuting the grounds of appeal asserted (RIS-Justiz RS0041812, RS0041965). (Admissible) innovations can only be submitted to demonstrate or refute the grounds of appeal of nullity or defectiveness of the proceedings, but not to support or combat other grounds of appeal (RIS-Justice RS0041812). This condition is not met here because the defendant has only made one appeal.

The documents submitted with the aforementioned submissions were therefore to be rejected.

2 In its appeal, the defendant requested that various questions be submitted to the ECJ by way of a submission request pursuant to Art 267 TFEU. However, a party to the proceedings is not entitled under procedural law to request the initiation of a preliminary ruling procedure before the ECJ. Such an application, which is not (legally) provided for, must therefore be rejected (RIS-Justiz RS0058452).

II.

The plaintiff's appeal is not justified. However, the defendant's appeal is justified.

In his exclusively asserted legal complaint, the plaintiff essentially states that the first court did not take into account all the components of the damages resulting from the established facts and that, based on an incorrect legal assessment, it assumed that some of the violations of the Previous Search TermDSGFONnext Search Term for which the defendant is responsible would not lead to a claim for damages. It was precisely a loss of control that was recognised in the recitals to the Previous Search TermDSGVONächster Suchbegriff and also in the literature as non-material damage eligible for compensation. By failing to comply with its duty to inform under Article 14 Previous Search TermDSGVONnext Search Term, the defendant had moreover deprived the plaintiff of the possibility of asserting the rights to which he was entitled at a much earlier point in time. For this reason, the period of time during which the plaintiff was not aware of the unlawful processing of his personal data by the defendant had been substantially extended. Finally, the facts of "profiling" are mentioned in recital 75 to the Previous Search TermDSGVONnext Search Term, which is why unlawful profiling also leads to non-material damage. An important criterion for the assessment of the amount of immaterial damages claims is also the duration of the infringements. However, the court of first instance had not made any significant findings in this regard, which is criticised as a secondary deficiency of the proceedings.

In its appeal, the defendant also only raises the plea of incorrect legal assessment. It considers that the fact that there was no processing of sensitive data by the defendant in the present case constitutes an incorrect assessment of the facts by the first court. In the statistical classification of anonymously obtained data, neither a direct nor an indirect statement about the plaintiff's concrete political opinion is discernible. Moreover, the plaintiff did not suffer any compensable non-material damage. The court of first instance had only been able to establish that the plaintiff had been "disturbed" by the storage of the party affinities. The court of first instance inadmissibly equated an (alleged) infringement per se with a non-material damage for which compensation can be paid. Recital 75 of the Vorheriger SuchbegriffDSGVONächster Suchbegriff contains only a demonstrative list of circumstances that could lead to physical, material or immaterial damage. However, the plaintiff had failed to sufficiently assert and prove the occurrence of damage suffered by him. Non-material damage is only present if it goes beyond the annoyance or emotional damage caused by the violation of rights. Moreover, the Court of First Instance also incorrectly assessed the damage. As a secondary deficiency, it is argued that the first court did not make any findings as to the fault of the defendant.

The court of appeal considered this:
Judgment.

1. the plaintiff accuses the defendant of a violation of his data protection rights that has been going on for years and claims immaterial damages in accordance with Art 82 Previous Search TermDSGvonnext Search Term

Pursuant to Art 99 (2) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (Basic Data Protection Regulation, Previous Search TermDSGVONnext Search Term), this Regulation applies from 25 May 2018. For Austria, Section 69 (5) of the Data Protection Act (Datenschutzgesetz - DSG) as amended by the Data Protection Adaptation Act 2018 (Federal Law Gazette I 2017/120) stipulates that violations of the Data Protection Act 2000 which were not yet pending at the time of entry into force of this Federal Act (that was on 25 May 2018; Section 70 (1) leg cit) are to be assessed according to the legal situation after the entry into force of this Federal Act. An offence that was committed before the entry into force of this Federal Act shall be assessed in accordance with the legal situation that is more favourable to the offender in its overall effect; this shall also apply to the appeal procedure.

This means that both the Previous Search TermDSGVONächster Suchbegriff and the DSG as amended by the Data Protection Adaptation Act 2018 must be applied to assess the justification of the claim for damages asserted by the plaintiff. The explanatory remarks on the Data Protection Amendment Act 2018 do not contain any further details in this regard (see 6 Ob 217/19h).

2 § 29.1 of the DSG reads as follows

"Any person who has suffered material or non-material damage as a result of a breach of the Previous Search TermDSGVONächster Suchbegriff or of Section 1 or Art 2 1st Principal is entitled to claim damages against the person responsible or against the processor under Art 82 Previous Search TermDSGVONächster Suchbegriff. In detail, the general provisions of civil law apply to this claim for damages."

The passive legitimation of the defendant as the person responsible for a data protection violation or as a commissioned processor has not been questioned by the defendant here.

3 In order to ensure comprehensive protection for the persons concerned, Art 82 Previous Search TermDSGVNext Search Term provides for an independent liability provision for the violation of the protection of personal data, which establishes a direct tortious claim for damages. Art 82 Previous Search TermDSGVONext Search Term (in conjunction with Art. 29 para. 1 DSG) thus constitutes an independent tort liability provision which enables the persons concerned without a direct legal relationship to the liable party to obtain from the latter full and effective compensation for the damage suffered. Liability for compensation for the damage suffered is an appropriate sanction or consequence of behaviour contrary to the standards and is also intended to ensure compliance with the standards for general and special preventive reasons. If the provisions of the Previous Search TermDSGVONächster Suchbegriff and/or the delegated acts are violated, then the person who violates the provisions shall owe the violated person compensation in accordance with the general provisions of civil law. The national provisions on damages therefore supplement the liability for damages under the Previous Search TermDSGVONächster Suchbegriff (Section 29(1) sentence 2 DSG), so that they are relevant to the general conditions for claims, unless the Previous Search TermDSGVONächster Suchbegriff contains a special provision (Schweiger in Knyrim, DatKomm, Art 82 Previous Search TermDSGVONächster Suchbegriff, Rz 1 and 2).

Art 82(1) Previous search termDSGVONächster Suchbegriff stipulates that any person who has suffered material or non-material damage as a result of a breach of this Regulation shall be entitled to damages against the person responsible or against the processor.

Amendment 146 of the Previous Search TermDSGVONächster Suchbegriff states that the controller or the processor should compensate any person who has suffered damage as a result of a processing operation not in conformity with this Regulation. The data subjects should receive full and effective compensation for the damage suffered.

Accordingly, compensation for non-material damage is in principle already provided for in the Previous Search TermDSGVONnext Search Term. According to the DGSVO, non-material damages are (but only) compensated if non-material damage has occurred (see recently Spitzer, Schadenersatz bei Datenschutzverletzungen, ÖJZ 2019/76, 635).

4) In the case of a tortious claim for damages, the claimant, i.e. the plaintiff, must assert and prove the conditions on which liability is based. These include the occurrence of a (material or immaterial) damage, the violation of a norm, i.e. the (objective) illegality by the tortfeasor, as well as the (co-)causation of the tortfeasor's conduct in the damage that occurred in the sense of adequate causality. This means that the entry into force of the Previous Search TermDSGVONächster Suchbegriff and the amended provisions of the DSG 2000 (with 25.5.2018) have not changed the burden of proof for the existence of damage and for causality (6 Ob 217/19h; Schweiger ibid., Art 82 Previous Search TermDSGVONächster Suchbegriff, margin no. 92).

5 As will be explained below, in the first instance proceedings the plaintiff did not sufficiently claim or prove that he had suffered non-material damage as a result of the defendant's alleged violations of rights.

5.1 According to § 1293 ABGB, damage means any harm caused to someone's property, rights or person. One speaks of a "disadvantage to a person" when personal rights are violated. These do not have an asset value, therefore only immaterial damages are caused. Immaterial damages show up as a negative emotional impairment. Data protection law is also considered to be one of the personal rights of every individual worthy of protection, as an outflow of the right to maintain secrecy (Kerschbaumer-Gugu, Schadenersatz bei Datenschutzverletzungen [2019], p 60 f, mwN).

5.2. according to erwGr 146 sentence 3 of the Vorheriger SuchbegriffDSGVONächster Suchbegriff, in the light of the case-law of the Court of Justice of the European Union, the concept of damages should be interpreted broadly in a way that fully complies with the objectives of this Regulation. Art 1 Previous search termDSGVONnext search term results in a double objective of the Regulation. On the one hand, natural persons are to be protected when their personal data are processed and, on the other hand, the free movement of these data within the Union is to be ensured (Kerschbaumer-Gugu loc.cit., p 61 ff).

In the third sentence quoted, Recital 146 also refers to the interpretation in the light of the case law of the ECJ. The Court of Justice of the European Union has referred to the importance of a high European level of data protection. In order to ensure the enforcement of the same, the "principle of effectiveness" developed by the ECJ plays a central role. National law must therefore not make it impossible or excessively difficult to obtain claims guaranteed by Union law. If compensation payments are provided for in the event of infringements of Union law, these must, in order to ensure effective (effective) enforcement of Union law, go beyond a symbolic value and have a genuinely deterrent effect. The ECJ also emphasises the importance of effective, proportionate and dissuasive sanctions in judgments on the level of fines (Kerschbaumer-Gugu loc.cit., p 65 f, mwN). The ECJ has recently stated that there are no provisions in Union law on the burden of proof for the damage, so that national rules apply in this respect. The burden of proof for the existence and the amount of the damage is therefore on the plaintiff. In accordance with the principle of effectiveness, national law of evidence may only not provide for insurmountable hurdles for the assertion of the claim (6 Ob 217/19h mwN).

5.3 In the case law of the Union Courts it has become established as a prerequisite for compensable damages that they must have occurred "actually" and "with certainty". This is intended to exclude purely hypothetical and indefinite damages. The requirement of actual damage also excludes the award of symbolic damages. For this reason, a claim for immaterial damages requires that an actual impairment of the emotional world of the injured party has occurred (Kerschbaumer-Gugu loc.cit., p 71, mwN).

In the case of data protection, the protected legal interest is the protection of personal data against loss of confidentiality and integrity (cf. Art. 5 para. 1 lit f Previous search termDSGFORnext search term). Intangible damage is therefore damage that cannot be measured in money terms and which is caused by impairments of personality. In Amendment 75 of the Previous Search TermDSGVONnext Search Term, some circumstances are addressed which may constitute damage to the persons concerned, such as discrimination, identity theft, damage to reputation, loss of confidentiality of personal data subject to professional secrecy, unauthorised removal of pseudonymisation, other significant economic or social disadvantages (Schweiger ibid., Art 82 Previous Search TermDSGVONnext Search Term, margin no. 14 f).

According to this, negative impairments of the emotional world are to be compensated by immaterial damages. The ECJ considers physical and mental suffering to be such impairments (e.g. ECJ 3.2.1994, C-308/87 [Grifoni/European Atomic Energy Community]). According to the case law of the ECJ, such damage can occur, for example, when someone is subjected to a state of anxiety, their reputation, dignity or honour is violated, the integrity of a person is called into question, pain is suffered, family and social relationships are affected, they suffer a shock or are frustrated, dissatisfied or insecure. ErwGr 75 and 85 of the Previous Search TermDSGVONächster SuchbegriffDSGVONächster Suchbegriff only give - the already cited - examples from which immaterial damages in particular can result. This means that immaterial damages can be derived from these circumstances for the concrete injured party. However, this does not change the fact that the respective plaintiff has to present the immaterial damage or to assert and prove it concretely. The immaterial damage must also have actually been suffered. Although every violation of data protection causes negative thoughts in the person concerned, at least for a short time, it cannot be concluded from this that immaterial damage is automatically associated with every Previous Search TermDSGFrom Next Search Term Violation. In the earlier case law of the Supreme Court, it was stated that the mere fact of a violation of the Data Protection Act does not in itself constitute a disadvantage that could be described as non-material damage (1 Ob 318/01y; Kerschbaumer-Gugu loc.cit., p 75 f; Schweiger loc.cit., Art 82 Vorheriger SuchbegriffDSGVONächster Suchbegriff, margin no. 26).

5.4 A data protection violation must in any case affect the emotional sphere of the injured party in order to be able to speak of immaterial damage (Art 82 para. 1 Previous search termDSGVonnext search term). According to the understanding of the European Union Courts, especially with regard to the principle of effectiveness, a particularly serious encroachment on data protection law as a prerequisite for compensation for non-material damage will no longer be required. The severity and intensity of the impairment will play a central role in the assessment of the damages, but according to the prevailing opinion and also in the opinion of the Appeals Senate, a minimum degree of personal impairment will have to be demanded for the existence of non-material damage (Kerschbaumer-Gugu loc.cit., p. 77; Schweiger loc.cit., Art 82 Vorheriger SuchbegriffDSGVONächster Suchbegriff, margin no. 24 ff; see also 6 Ob 217/19h).

5.5 Although, according to the clear wording of Art 82 Previous Search TermDSGVONnext Search Term, no serious violation of the right of personality is required in order to be able to assert an immaterial damage claim, the assumption that any violation of the Previous Search TermDSGVonnext Search Term leads to an obligation to compensate solely for general preventive reasons is incorrect. The obligation to compensate for non-material damage must be counterbalanced by an identifiable and, to that extent, actual violation of personality rights, which may lie, for example, in the "exposure" resulting from unlawful access to data. However, the violation of rights per se does not constitute immaterial damage, but there must be a consequence or consequence of the violation of rights which can be qualified as immaterial damage and which goes beyond the annoyance or emotional damage caused by the violation of rights per se. The injured party must therefore have suffered such a disadvantage, which must be given weight as a result of the impairment of interests. Not every annoyance or other emotional damage caused by the violation per se is to be compensated, but only a particular non-material interest that goes beyond this (see Koziol, Haftpflichtrecht II2, 231). The unlawful state which affects the person affected by the violation of the Previous Search TermDSGVONächste Suchbegriff without exceeding a materiality threshold is not without sanction. In this respect, the aggrieved party has a judicially enforceable claim for injunction and removal (Schweiger ibid., Art 82 Vorheriger SuchbegriffDSGVONächster Suchbegriff, margin no. 29).

5.6 Von Schweiger (in Knyrim, loc.cit., Art 82 Previous Search TermDSGVONnext Search Term, margin no. 24) is of the opinion that the regulation of Art 82 Previous Search TermDSGVonnext Search Term is comparable to the regulation in the Package Travel Directive due to its intention to protect natural persons and their interests in connection with the processing of personal data. This view is also shared by the Court of Appeal. The case law on the Package Travel Directive can be used as a point of reference for the determination of a possible lower limit of compensable damages due to the comparability of the protection purpose and the fact that both regulatory areas affect persons in their personal spheres of life. It is true that Art 5 of the Package Travel Directive in principle grants a right to compensation for non-material damage resulting from the non-performance or improper performance of the services that make up a package tour. However, not every lack of travel which already leads to justified warranty claims (e.g. a price reduction) has the consequence that immaterial damages for loss of holiday enjoyment - solely per se due to the lack of travel - must also be awarded (see 3 Ob 220/06h; 5 Ob 242/04f). In order to affirm a non-material damages in that area of law, the requirement of "significant impairment" is mentioned (10 Ob 20/05x).

This means that, although insignificant impairments do not remain without sanction - there is also a judicially enforceable claim for injunctive relief and removal with respect to the plaintiff's alleged violations of his rights under the Previous Search TermDSGFONnext Search Term -, these do not per se already lead to an obligation to pay compensation for the immaterial damage.

5.7 Therefore, even if a serious violation of the right of personality cannot generally be claimed for the claim for compensation of the immaterial damage in the sense of Art 82 Previous Search TermDSGVONnext Search Term, an objective understanding of the personal impairment must nevertheless be decisive. The court has to assess on a case-by-case basis whether the violation of the previous search termDSGVONext search term would cause an averagely sensitised data protection figure to develop such negative feelings which go beyond those which one automatically develops when a law is violated to his disadvantage (Kerschbaumer-Gugu loc.cit., p 78, mwN).

6 If one now applies this legal situation to the present case, the plaintiff's claim for compensation for non-material damage fails for lack of sufficient procedural assertions.

6.1 The plaintiff has merely submitted that the unlawful processing and transmission or publication of personal data concerning him has caused non-material damage at least in the amount of the sum claimed. He later added that his (non-material) damage consisted in the disproportionate damage caused by the defendant's unlawful and almost careless handling of his personal and sometimes sensitive data, namely information about his alleged affinity with certain political parties. Moreover, in his submission, the plaintiff again referred to the infringements of which the defendant was accused in detail, as well as to literature and case law, without even roughly describing the concrete impairment in his person. The plaintiff did not assert which considerable negative feelings were developed.

6.2 In its first pleading, the defendant already referred to the unsubstantiated and indecisive nature of the necessary elements of a claim for damages and repeatedly stated that the necessary factual element of a claim for damages had not been sufficiently claimed. The court of first instance expressly discussed the factual and legal arguments in the preparatory proceedings, pointing out that (non-material) damage must be asserted in concrete terms and that it is not sufficient to state only in abstract terms what infringements are alleged to have occurred.

6.3 With regard to the alleged concrete effects in the further proceedings, the plaintiff referred to erwGr 75 and 85 of the Vorheriger SuchbegriffDSGVONächster Suchbegriff and, with regard to the concrete effects in his person, only argued that he had been prevented from controlling the personal data concerning him and that he had irretrievably lost control over the personal data concerning him.

It is true that Amendments 75 and 85 of the Austrian Data Protection Act (Vorheriger SuchbegriffDSGVONächster Suchbegriff) give examples from which, in particular, non-material damage may result, including the loss of control over personal data. How concretely this loss of personal data has affected the personality and life of the plaintiff was not presented by the plaintiff, despite the defendant's multiple objections and the discussion by the first court. In the light of the defendant's objections, one of the parties to the proceedings must review its own position and draw the necessary consequences (RIS-Justice RS0122365).

6.4 Although the plaintiff comprehensively described the defendant's alleged violations of the Previous Search TermDSGVONächster Suchbegriff in his statement of case, he failed to make any submissions regarding the concrete effects on his personality. The constituent element of the offence of the occurrence of non-material damage to the plaintiff, which gives rise to liability, was therefore not even sufficiently asserted.

7 Based on the plaintiff's incomplete procedural assertions regarding damage, the court of first instance only stated that the plaintiff considers his fundamental right to data protection to have been violated by the defendant's data processing and its conduct in connection with his request for information and that the storage of the party affinities "disturbed" him. The plaintiff has not suffered any impairment of his health in this connection. Nor was his professional advancement impaired (US 20).

Taking these statements into account, it cannot be assumed that the plaintiff has suffered an impairment of personality corresponding to a state in which an average data protection sensitized figure develops such negative feelings that go beyond those which one automatically develops when a law is violated to his disadvantage.

No immaterial damage to the plaintiff has therefore been proven.

8) The question of whether the other liability-causing prerequisites for a claim for damages under Art 82 Previous Search TermDSGFORnext Search Term are met need no longer be answered, if only because of the lack of sufficient assertions and evidence of immaterial damage. Therefore, the secondary deficiencies in the determination of the damages claimed by both appellants in this context are also irrelevant. Since the plaintiff did not sufficiently explain the concrete effects of the alleged violations on his personality, it is not important over which period of time the violations of the Previous Search TermDSGVONächster Suchbegriff (Previous Search TermDSGVONext Search Term) brought into play by him were committed by the defendant. It is equally irrelevant whether the result of the free assessment of damages under § 273 ZPO by the court of first instance was correct.

The ground of appeal asserted in the notice of appeal - in relation to the failure of the first court to hear the witnesses - that the proceedings were defective is inadmissible under § 501 ZPO.

9 In summary, therefore

The requirement derived from national tort law to assert the "damage suffered" in the concrete person sufficiently and not only in the form of verba legalia ("immaterial damage") or otherwise only in general terms ("adversity", "uncertainty", "disadvantage") does not constitute an insurmountable hurdle for the assertion of a claim under Art 82 (1) Previous Search TermDSGFORnext Search Term. The element of the damage suffered is not to be equated with an infringement of the law of the Previous Search TermDSGVONnext Search Term as such.

In the given case, the plaintiff did not comply with the obligation incumbent on him to specifically state what considerable disadvantage arose in his emotional life as a result of the alleged infringements of the Previous Search TermDSGGVONächster SuchbegriffDSGVO and what impairment of personality results from this.

10. the plaintiff's complaint and thus his appeal could not be upheld. On the other hand, the explanations of the defendant's appeal are justified in view of the fact that immaterial damage that is eligible for compensation was not sufficiently claimed and proven.

In lieu of the defendant's appeal, therefore, the contested judgment had to be amended to the effect that the claim had to be dismissed.

11. procedural matters

11.1 The amendment of the contested judgment requires a new decision on the costs of the proceedings at first instance. This is based on §§ 41, 54 para 1a ZPO.

The court of appeal considers the corrections made by the court of first instance to the defendant's list of costs to be justified. For this reason, the defendant was not awarded costs for the pleading of 5 July 2019 and compensation for the loss of time and travel expenses for the day's proceedings. It was to be taken as a manifest error that the objection of the defendant (ON 3) is not the statement of claim initiating the proceedings, which is why only an increase of EUR 2.10 (and not of EUR 4.10) in the remuneration is due for the filing of the objection in electronic legal transactions pursuant to Sec. 23a of the German Council Act (RATG). The defendant therefore has to pay EUR 1,380.46 in costs of the first instance proceedings.

11.2 The decision on the costs of the appeal proceedings is based on §§ 50, 41 (1) ZPO. The defendant was fully successful both with its own appeal and with regard to the appeal on points of law on the plaintiff's appeal. The defendant has correctly recorded its own appeal costs. However, a correction had to be made with regard to the costs of its appeal response to the extent that, in view of the value in dispute, only a single uniform rate was entitled to the triple uniform rate, not the triple uniform rate (§ 23.10 RATG). Therefore, the defendant is entitled to reimbursement of costs for the appeal proceedings totalling EUR 739.25.

11.3 The statement on the inadmissibility of the appeal is based on § 502 (2) ZPO.
Text number
EI0100076
European Case Law Identifier (ECLI)
ECLI:AT:OLG0819:2020:00100R00182.19B.0213.000
In RIS since
22.05.2020
Last updated on
22.05.2020
Document number
JJT_20200213_OLG0819_00100R00182_19B0000_000 
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