LAG Schleswig-Holstein - 6 Ta 49/22

LAG Schleswig-Holstein - 6 Ta 49/22
Court:	LAG Schleswig-Holstein (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 82(1) GDPR
Decided:	01.06.2022
Published:
Parties:
National Case Number/Name:	6 Ta 49/22
European Case Law Identifier:
Appeal from:	ArbG Kiel
Appeal to:	Unknown
Original Language(s):	German
Original Source:	REWIS (in German)
Initial Contributor:	pau_see

The Regional Labour Court of Schleswig-Holstein (LAG Schleswig-Holstein) ordered the controller to pay €2,000 in non-material damages for publishing a promotional video featuring the data subject without their informed, written consent.

English Summary

Facts

The controller operated a care service where the data subject was employed. The controller filmed the data subject in their work environment and published a thirty-six second video on Youtube for promotional purposes. The data subject had previously given verbal consent to the filming but had not received any further information about the purpose of the filming or their rights.

Later, the data subject objected to the use of the video and claimed €6,000 in damages during proceedings before the labour court. The controller deactivated the video immediately afterwards. The parties involved reached an agreement and settled the dispute.

The data subject had applied for legal aid for claiming damages up to €6,000. The ArbG Kiel granted it up to the amount of €2,000. Thereupon, the data subject then appealed to the LAG Schleswig-Holstein for legal aid in the amount of €6,000.

Holding

The court upheld the original decision. The controller infringed the GDPR by filming the data subject and publishing the clip because the data subject had not given written consent and was not informed about the purpose of the data processing or their right to withdraw consent. The data subject is entitled for maximum damages of up to €2,000, but not €6,000 as requested.

The data subject does not have to prove that damage within the meaning of Article 82(1) GDPR has occurred, as a breach of the GDPR itself constitutes non-material damage. Recital 146, sentences 1 and 6 GDPR support this interpretation, as the claims for damages serve to support the objectives of the Regulation and in particular to provide effective protection of individuals’ rights.

The court confirmed that damages in this case can amount to a maximum of €2,000. The controller did not film the data subject in intimate situations or discriminate them and the data subject gave verbal consent to be filmed. Furthermore, the controller reduced the harm by taking the video down immediately after the data subject requested it. However, on the other hand, the controller was not only using photographs, but moving images for a commercial purpose.

The court found that damages of €6,000 would not be justified in these circumstances. In similar cases, even lower amounts than €2,000 were awarded, or the cases were more severe because the controller’s actions were discriminating.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

State Labor Court of Schleswig-Holstein
File number: 6 Ta 49/22
2 Ca 82 e/22 ArbG Kiel
Decision of 06/01/2022
In the litigation
pp
said the 6th Chamber of the Schleswig-Holstein State Labor Court on June 1st, 2022
by the presiding judge at the regional labor court ... as presiding
closed:
The plaintiff's immediate appeal against the decision of the labor
court in Kiel from April 28th, 2022 - 2 Ca 82 e/22 - will be returned at your expense
assigned.
The appeal on points of law is not admitted.
- 2 -
Reasons:
I. The complainant (plaintiff and applicant) objects to the partial
wise denial of legal aid.
In the main, the parties argued about claims from a terminated work
employment relationship. Among other things, the plaintiff demanded payment of EUR 6,000.00 for pain and
money. This was based on the following facts:
The plaintiff had from 08.09. until December 31, 2021 in the nursing service of the defendant as a nursing
assistant worked. During this time, the defendant allowed a 36-second
shoot video. The plaintiff took part in the video shoot. She's in the video to-
next out of focus and from second 0:11 in full-body shot to see how she in
a car that reads "We are looking for nurses" and an audio
Overlay says "Get in now!". Later the plaintiff is clearly and in portrait
height while sitting in the car, while the audio overlay "interpersonal
chemical relationships". The plaintiff had only spoken verbally about the video shoot
explained. The defendant had not informed the plaintiff in advance about the purpose of the data
processing and your right of withdrawal in text form. The defendant published
the video on the Internet on the platform "youtube".
For the first time with the extension of the lawsuit dated February 2nd, 2022, the plaintiff sued the defendant
demands that the video at issue be refrained from further use. additional
Lich she has paid compensation for pain and suffering i.H.v. EUR 6,000.00 required. The defendant
then removed the video before the conciliation hearing was carried out
Network. The parties have meanwhile reached a settlement that ends the proceedings
closed.
By decision of April 28, 2022 (delivered on May 2, 2022), the Labor Court of
Plaintiff Granted Legal Aid for Her Claim for Payment of
Compensation for pain and suffering, but only up to an amount of EUR 2,000.00.
The plaintiff also objects to the partial refusal of legal aid
their immediate complaint received by the labor court on May 9th, 2022. she
- 3 -
complains that the labor court did not take sufficient account of the fact that the labor
judges Münster in its judgment of March 25, 2021 (3 Ca 391/20) in a comparable case
Case a significantly higher compensation for pain and suffering.
The labor court did not remedy the complaint (non-remedial order dated
05/17/2022) and submitted the matter to the regional labor court for a decision.
II. The immediate appeal permitted under §§ 127 Paragraph 2, 569 ZPO is unfounded
de. The labor court has the sufficient prospect of success for the pain and suffering
rightly denied, insofar as the plaintiff demands payment of more than EUR 2,000.00
belongs.
1. The prospect of success within the meaning of § 114 ZPO is to be assumed
from the standards which, according to the case law of the Federal Constitutional
right apply. According to this, the examination of the prospect of success must not lead to the
legal prosecution itself in the ancillary proceedings of legal aid
stored, and to let this take the place of the main proceedings (cf.
e.g. B. BVerfG 30.04.2007 - 1 BvR 1323/05 -; BVerfG 15.10.2015 - 1 BvR 1790/13
– para. 19). Legal aid may therefore only be refused if a
follows in the main, although not absolutely impossible, the success
prospect is only a distant one (BVerfG 13.07.2005 - 1 BvR 175/05 -).
2. Measured against this, the labor court has met the requirements for the sufficient
corresponding prospects of success are not inadmissibly overstretched. It correctly recognized
that the summary examination based on the standard of § 114 para. 1 ZPO, whether
a specific compensation for pain and suffering appears appropriate or not,
the legal aid procedure can regularly only be limited to
whether the compensation sought is based on the specific circumstances
of the individual case within a reasonable framework. the
final check to what exact amount within this framework
compensation for pain and suffering in the specific case is appropriate or not, the main
Subject to legal proceedings (see OLG Karlsruhe 16.02.2011 - 4 W 108/10 -
Rn.17)
- 4 -
a) In view of the specific circumstances of the individual case, the claim
tion underlying violation of the GDPR the upper limit of a still
reasonable amount of the coveted compensation for pain and suffering at EUR 2,000.00.
aa) Due to the alleged violation of the defendant against the provisions
According to the GDPR, the plaintiff has suffered immaterial damage. Of the
Legal right to immaterial damages according to Art. 82 Para. 1 GDPR
does not require, beyond the violation of the GDPR, that the
last person explains a (further) non-material damage suffered by him/her.
Already the violation of the GDPR itself leads to an im-
Material damage (BAG 08/26/2021 - 8 AZR 253/20 - Rn. 33). For this
EG 146 sentence 3 GDPR speaks for itself, according to which the concept of damage in
be interpreted broadly and in a way in the light of the case law of the ECJ
which fully meets the objectives of the Regulation. Thieves-
The chamber of grievances, together with the labor court, assumes that in
dispute has exceeded the limit of a significant violation of the law.
bb) According to EG 146 sentence 6 of the GDPR, the persons concerned should have a full
receive permanent and effective compensation for the damage suffered.
When assessing non-pecuniary damages by the court
therefore all circumstances of the individual case must be considered. In addition, it should be
ensure that actual and effective legal protection from the GDPR
derived rights should be guaranteed (see BAG 08/26/2021 - 8 AZR
253/20 – paragraph 36). In view of this, the Board of Appeal assumes that
that Art. 82 (1) GDPR, in addition to its balancing function, also includes special or
has a general preventive character and this when measuring the amount of the to
compensatory immaterial damage at the expense of the person responsible
(cf. 4th question submitted by the Federal Labor Court in the decision of August 26, 2021, loc.
paragraph 35). Violations must be effectively sanctioned. the damage
rate in the event of data protection violations should have a deterrent effect in order to
to help achieve a breakthrough in the General Data Protection Regulation (effet utile).
cc) Taking into account and weighing up all the circumstances of the individual case
compensation of EUR 2,000.00 is the upper limit. That has it
- 5 -
Labor court convincing on pages 3 and 4 of the challenged decision
justified. It rightly pointed out that the impairment of the
The plaintiff's right to her own picture was not serious here, since the plaintiff
rin knew about the disputed recordings. She had the video shoot off-
willingly cooperated. The plaintiff had consented to the recordings
clarified, alone not in the required written form and without prior
direction about the processing purpose and the right of withdrawal. that the recording
men (getting into the car, sitting in the car) touches the plaintiff's privacy
or would have discriminated against, is not recognizable. The labor court was allowed to
assessment of the compensation for pain and suffering also take into account that the defendant
video immediately removed from the network after the plaintiff recorded it
asked to stop using the video. Even if in favor of
plaintiff is taken into account that it is not just about photos, but about
commercially used moving images and possibly only a small
total culpability is not included in the consideration in favor of the defendant
(cf. question 5 of the BAG in the decision of 08/26/2021 loc. Rn.
38), according to the circumstances of the case, does not exceed EUR 2,000.00
compensation justified.
dd) The plaintiff wrongly complains that the labor court did not do enough
based on the compensation for pain and suffering awarded in comparable cases and
have in particular the decision of the Labor Court of Münster dated
03/25/2021 (3 Ca 391/20) passed over.
It is correct that when determining the upper limit of a
any compensation for pain and suffering to be awarded to an appropriate ratio
the amount of the claim in other cases of personal rights violations
awarded compensation amounts must be observed. Since the case law in
Cases of significantly more serious invasions of privacy and intimacy
clandestine surveillance or clandestine production lasting several days to several months
of photos from the intimate area regularly amount up to EUR 1,000.00
appropriate compensation, the comparative
aim here for an (even) lower upper limit.