Article 82 GDPR

← Article 82 - Right to compensation and liability →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 82 - Right to compensation and liability

1. 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.

2. Any controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation. A processor shall be liable for the damage caused by processing only where it has not complied with obligations of this Regulation specifically directed to processors or where it has acted outside or contrary to lawful instructions of the controller.

3. A controller or processor shall be exempt from liability under paragraph 2 if it proves that it is not in any way responsible for the event giving rise to the damage.

4. Where more than one controller or processor, or both a controller and a processor, are involved in the same processing and where they are, under paragraphs 2 and 3, responsible for any damage caused by processing, each controller or processor shall be held liable for the entire damage in order to ensure effective compensation of the data subject.

5. Where a controller or processor has, in accordance with paragraph 4, paid full compensation for the damage suffered, that controller or processor shall be entitled to claim back from the other controllers or processors involved in the same processing that part of the compensation corresponding to their part of responsibility for the damage, in accordance with the conditions set out in paragraph 2.

6. Court proceedings for exercising the right to receive compensation shall be brought before the courts competent under the law of the Member State referred to in Article 79(2).

Relevant Recitals

Recital 147: Specific Rules on Jurisdiction

Where specific rules on jurisdiction are contained in this Regulation, in particular as regards proceedings seeking a judicial remedy including compensation, against a controller or processor, general jurisdiction rules such as those of Regulation (EU) No 1215/2012 of the European Parliament and of the Council should not prejudice the application of such specific rules.

Recital 146: Claim for Damages

The controller or processor should compensate any damage which a person may suffer as a result of processing that infringes this Regulation. The controller or processor should be exempt from liability if it proves that it is not in any way responsible for the damage. The concept of damage should be broadly interpreted in the light of the case-law of the Court of Justice in a manner which fully reflects the objectives of this Regulation. This is without prejudice to any claims for damage deriving from the violation of other rules in Union or Member State law. Processing that infringes this Regulation also includes processing that infringes delegated and implementing acts adopted in accordance with this Regulation and Member State law specifying rules of this Regulation. Data subjects should receive full and effective compensation for the damage they have suffered. Where controllers or processors are involved in the same processing, each controller or processor should be held liable for the entire damage. However, where they are joined to the same judicial proceedings, in accordance with Member State law, compensation may be apportioned according to the responsibility of each controller or processor for the damage caused by the processing, provided that full and effective compensation of the data subject who suffered the damage is ensured. Any controller or processor which has paid full compensation may subsequently institute recourse proceedings against other controllers or processors involved in the same processing.

Commentary

Article 82 GDPR introduces a right to compensation for damage caused as a result of an infringement of the GDPR.

The provision conclusively contains all the conditions for such a claim, which are to be interpreted in accordance with EU law.

Any person may be entitled to compensation, regardless of whether they are data subjects. Only a controller or a processor can be the debtor, with paragraph 2 containing additional requirements depending on the classification.

A claim first requires an infringement of the GDPR, its delegated and implementing acts and relevant member state legislation. Secondly, damage must have occurred, which explicitly includes material and non-material damage. Thirdly, the infringement must be causal for the damage. Fourth, the damaging party must also be “responsible” for the event giving rise to the damage in the sense of paragraph 3. In a final step, the amount of damage must be assessed. Both here and in determining whether damage has occurred, a broad interpretation must be applied.

As far as the burden of proof is concerned, Article 82 only contains one (special) provision in paragraph 3, otherwise it is silent on this matter. The burden of proof is to be determined according to general principles, taking into account Article 5(2) GDPR.

Paragraphs 4 and 5 regulate the liability relationships in the case of several damaging parties. According to paragraph 4, they are each liable for the entire amount in their external relationship (i.e. vis-à-vis the damaged party) (joint liability). Paragraph 5 regulates the internal compensation between the damaging parties.

In addition to damages under Article 82 GDPR, there may be other civil law or contractual claims that a data subject may rely on. For example, many jurisdictions foresee that unlawful profits must be given back ("unjust enrichment"). The GDPR does not regulate such other civil law claims, that may apply in parallel to Article 82.

(1) Compensation

Direct Application in the Member States

First of all, it should be noted that Article 82 GDPR - like almost all provisions of the GDPR - is directly applicable in all member states without any act of implementation. Article 82 GDPR leaves the member states no room for manoeuvre at all. Member state deviations that are not compatible with Article 82 GDPR must therefore - in accordance with the principle of the primacy of Union law - remain inapplicable.

In this context, it should also be pointed out that this provision is only to be interpreted according to Union law and not according to the law of the Member States. Emphasising this self-evident fact is necessary, as this is not always followed in the case law and literature of some Member States.

Person Entitled to Compensation

Paragraph 1 first defines the claimant as "any person". According to the explicit wording, which is also congruent with Recital 146 sentence 1 of the GDPR, a person who is not a "data subject" can also be entitled to bring an action. In addition to the wording, this follows in particular from a systematic comparison with other provisions of the GDPR, which explicitly refer to the data subject. In this respect, the linguistic deviation ("data subject") in Article 82(4) GDPR and Recital 146 sentences 6 and 8 GDPR seems to be a drafting error.

It is disputed whether legal persons can also be damaged parties.

Person Liable for Compensation

Only controllers within the meaning of Article 4(7) GDPR and processors within the meaning of Article 4(8) GDPR can be liable for compensation. Depending on the respective qualification, there are different liability requirements according to paragraph 2.

Infringement of the GDPR

A claim for damages first requires an infringement of the GDPR.

Unlike Article 83 GDPR, Article 82 GDPR does not contain a catalogue of infringements that justify compensation. In this respect, every infringement should initially fulfil this requirement. A limitation can, however, take place according to general principles within the framework of causality.

The wording "infringement of this Regulation" does not appear precise, as it seems to be also the case under Article 83 GDPR (see the respective Commentary). According to the Recital 146 sentence 5 GDPR, Article 82 GDPR also allows claims for damages for infringements of "delegated and implementing acts adopted in accordance with this Regulation and Member State law specifying rules of this Regulation".

Material or Immaterial Damage Suffered

According to the clear wording of Article 82 GDPR, damage must have occurred in order to justify a claim for damages. This reading is in line with Recital 146 sentence 1 GDPR: "compensate any damage which a person may suffer as a result of processing [...]."

This requirement is nevertheless not uncontroversial. For example, Zanfir-Fortuna predicted that under the civil law systems of some member states – especially in the case of non-material damages – there could be a question of whether a breach of the regulation without proof of quantifiable damage is sufficient for a damage claim. This question is currently before the CJEU for preliminary decision.

The question of whether there must be an infringement at all cannot be clearly distinguished from the substantive requirements for damage:

Recital 146 sentence 3 GDPR proves that the concept of harm should be interpreted broadly: "The concept of damage should be broadly interpreted in the light of the case-law of the Court of Justice in a manner which fully reflects the objectives of this Regulation." An elementary objective of the GDPR is effectiveness. This becomes particularly clear in view of the wording in Recital 146 sentence 6 GDPR, according to which not only "full" but also "effective" compensation has to be paid.

The specific requirements for the occurrence of damage are unclear. For example, it is argued with regard to non-material damage that making personal data accessible to third parties without their consent may constitute non-material damage due to the inherent public exposure.

The term “damage” must be interpreted in accordance with Union law, which also follows indirectly from Recital 146 sentence 4 GDPR ("without prejudice to any claims for damage deriving from the violation of other rules in Union or Member State law"). Other readings, which we tend to disagree with, seem to put more emphasis on the national law. For example, some seem to apply the case law of the German Federal Court of Justice, according to which non-material damages in the case of violations of personality rights can only be considered in the case of a serious violation of personality rights (see under Germany: "minimal damages"). This is methodologically erroneous.

Material damages

Material damages are any "out of pocket" loss that are causes by a violation of the GDPR. They are usually forms of secondary harm (such as the loss of a job, the damage from having a contract denied or the damage from price discrimination), that are indirectly caused by a violation of the data subject's rights under GDPR. Out of pocket losses can be objectively quantified.

Non-Material damages

Non-material damages are the emotional damage of the illegal processing of personal data itself. There is no objective value of emotional damages and it will be up to the case law of civil courts to quantify these damages. This is not specific to GDPR, as also other emotional damages (e.g. pain and suffering) are mainly following case law. Traditionally different Member States have very different case law when it comes to calculating emotional damages. This makes it very hard to predict exact amounts.

Germany: "minimal" damages?

In Germany, many scholars and some courts take the view that "minimal violations" (Bagatellverstoß) do not give rise to damages under GDPR. In effect this would man that Article 82 does not apply, unless a certain threshold is met. There is no clear indication how this alleged threshold is defined.

This legal view seems to be solely based on a German legal tradition to limit non-material damages. Under the German BDSG (implementing Directive 95/46/EC) there was no non-material damages in the private sector at all. There is also a limit under German civil law protection of the right to privacy (Allgemeines Persönlichkeitsrecht). The German debate is often connected with the option under German law that lawyers may be able charge for cease and desist letters (Abmahnungen).

Article 82 GDPR does not foresee an exception for "minimal violations" and there is no opening clause that would allow national law or case law to create such an exception. To the contrary, Recital 146 GDPR clarifies:

"The concept of damage should be broadly interpreted in the light of the case-law of the Court of Justice in a manner which fully reflects the objectives of this Regulation." and "Data subjects should receive full and effective compensation for the damage they have suffered."

The German interpretation therefore seems to be a clear violation of GDPR - as EU law may never be interpreted under national law, but solely based on European law. Hopefully, the debate will find a conclusive solution in the near future by the CJEU in the context of a pending preliminary ruling procedure.

Damage Amount

With recourse to Recital 146 sentence 3 GDPR (see above), a dissuasive effect of the claim for damages is stipulated for the assessment of the amount of the damage.

According to this, on the one hand, a broad interpretation is required in compliance with the case law of the CJEU, and on the other hand, the objective of taking into account the objectives of the GDPR as fully as possible must be observed.

In this context, a certain sensitivity is required in particular for non-material damages, which is justified not least by the general function of damages for pain and suffering, namely a function of satisfaction and dissuasion.

Burden of Proof

The burden of proof is determined by general rules of Union law.

The burden of proof is on the party who presents the facts favourable to them. The legislator has provided for an explicit reversal of the burden of proof for the "responsibility" according to paragraph 3.

However, it is discussed whether a general reversal of the burden of proof for all requirements of a claim for damages could be derived from the accountability obligation from Article 5(2) GDPR. This cannot be followed in this sweeping manner. However, it would probably also be too short-sighted to speak only of "facilitations" by Article 5(2) GDPR. In light of Article 5(2) GDPR, a reversal of burden of proof for the infringement may well be considered. However, it may be doubted whether this also extends to the other requirements, in particular to the damage. Otherwise, the reversal of the burden of proof expressly provided for in paragraph 3 would be superfluous. Therefore, it can be assumed that the legislator did not assume a general reversal of the burden of proof. However, it should not be ignored that Article 5(2) GDPR aims to do justice to the often lacking knowledge of the damaged party of internal processes of the damaging party. It is already in line with general principles that such a lack of knowledge is to be compensated under the law of evidence.

Competition with Other Claims

Recital 146 sentence 4 GDPR deals with competition with other claims. A claim under Article 82 GDPR stands alongside potential other claims under Union or Member State law and is not affected by them. Conversely, this also means that data protection violations can in principle lead to claims for damages under Member State (general) civil law rules.

(2) Involvement, Causality and Specific Liability Requirements for Processors

Paragraph 2 contains another basic requirement for liability, namely causality. Moreover, a processor is only liable if one of the additional requirements set out in the second sentence are met.

Both sentences first establish a prerequisite that applies regardless of the classification as controller or processor, the causality between breach and damage. This is also clear from Recital 146 sentence 1 GDPR: “compensate any damage which a person may suffer as a result of processing […]”. As for the entire Article 82 GDPR, care must be taken to ensure effective application of European law (principle of equivalence and effectiveness). Recourse to CJEU case law on antitrust damages is likely to be appropriate.

The first sentence states that a controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation. This means that each controller involved in a processing is in principle fully liable for the resulting damage.

In this respect, it is sufficient that the controller can be regarded as the controller for the processing in question within the meaning of Article 4(7) GDPR. This is already made clear by the wording "any controller" in sentence 1 in contrast to "a processor" in sentence 2. In this respect, the controller is already “involved” when they engage a processor to process the data in question, irrespective of whether the processor complies with the instructions given by the controller. Any other view would lead to an unacceptable shift of the insolvency risk, which is in particular not compatible with the dogmatic of paragraphs 4 and 5. It is correct that the controller should not be ultimately liable in the case described above. However, this result can also be achieved by a consistent application of paragraphs 4 and 5. If the injured party makes a claim against the controller, for example, the controller can fully indemnify the processor according to paragraph 5. In contrast to the opinion of Zanfir-Fortuna, the injured party is not burdened with the insolvency risk of the processor in this way, for which there would be no objective reason. After all, the controller initiated the processing.

According to the second sentence, a processor is only liable for damage in two cases: (1) it had not complied with obligations of the GDPR specifically directed to processors; (2) it had acted outside or contrary to lawful instructions of the controller.

The obligations of the GDPR specifically directed to processors include all provisions in which a processor is named as the norm addressee. It is irrelevant whether it is named alone or together with or as an alternative to the controller. The obligation to implement appropriate technical and organisational measures according to Article 32(1) GDPR may be mentioned here as an example.

On the lawfulness of instructions, see in particular Bergt, in Kühling/Buchner, DS-GVO BDSG, Article 82 GDPR, margin numbers 30, 36, 37 (Beck 2020, 3rd ed.) (accessed 13 August 2021).

(3) Presumed Responsibility

Paragraph 3 introduces a further prerequisite (“responsible”) for the claim for damages, which should mean something like intent and negligence.

Paragraph 3 also contains a reversal of the burden of proof with regard to "responsibility". Responsibility is presumed. The purely dogmatic dispute as to whether the provision should rather be qualified as strict liability with the possibility of exculpation is practically irrelevant and can be left aside. Only if the controller or processor proves (i.e. bears the full burden of proof) that they are not responsible “in any way" for the damage that has occurred, there is exceptionally no liability. This is confirmed by Recital 146 sentence 2 GDPR.

The examples listed by Zanfir-Fortuna in which responsibility should be omitted seem incorrect. The first example given is: "Controllers prove that they are not controllers of the unlawful processing". If this proof succeeds, the proving party would already not be considered as a controller. The second example (which is a mirror image of the third example) is also unconvincing: "Damage was caused by a processor acting outside of or contrary to the mandate received by the controller". Here, too, the liability requirement of paragraph 2 would already cease to apply (especially if the controller could not foresee or control the processor’s wrongdoing)., so that without paragraph 3 a claim for damages would not come into consideration. Moreover, this view is not convincing from the point of view of creditor protection (see in detail under (2) Involvement, causality and special liability requirements for processors). These examples suggest that Zanfir-Fortuna understands paragraph 3 as a general reversal of the burden of proof to paragraphs 1 and 2, which is not the case (see above Burden of Proof).

Nemitz points out that the exemption from liability only applies if the respective controller or processor can prove a fault rate of 0 percent. In practice, this means that either there must not be a causal connection between the violation of the GDPR and the damage or that the violation is only based on an unavoidable event. The liability system of paragraphs 4 and 5 must be applied to everything else because of the otherwise unfairly distributed insolvency risk (see previous paragraph).

(4) Liability in the Case of Multiple Damaging Parties (Joint Liability)

Paragraph 4 contains a special rule for the case where there are several damaging parties (cf. also Recital 146 sentence 7 GDPR).

The provision contains the addition at the end "in order to ensure effective compensation of the data subject". The provision itself therefore contains a justification that has become substantive law. In this respect, it must be taken into account even more sharperly in interpreting the provision than, for example, the intention of the legislature, which can only be inferred from recitals or other regulatory material. The provision must therefore be interpreted in a particularly damaged party-friendly and thus broad manner.

According to paragraph 4, each damaging party is liable for the entire damage suffered by the damaged party. This means that in the external relationship there are no restrictions based on the level of “involvement” in the respective processing. All damaging parties are liable without limitation as joint debtors. This also corresponds to the aforementioned regulatory background of the provision. The damaged party's chances of compensation are increased by the increase in the number of persons liable (lower risk of insolvency). The compensation in the internal relationship is regulated in paragraph 5.

It is the sole decision of the damaged party whether to claim one damaging parties or all of them.

The provision clarifies that it is irrelevant whether several controllers, several processors or a mixture of both are involved in the processing leading to damage. This makes it clear that the processor is not liable in a subsidiary manner to the controller.

The “involvement” corresponds to that of paragraph 2. However, in order for a majority of the damaging parties to exist at all, the aforementioned requirements of paragraphs 2 and 3 must be fulfilled in addition to the "involvement".

The meaning of Recital 146 sentence 8 GDPR is questionable. Proportionate judicial recourse to the damaging parties seems to contradict paragraph 4, according to which all damaging parties are liable for the full amount. Moreover, the application of the provision presupposes that a pro rata claim against joint damaging parties is possible at all. In this respect, Bergt correctly points out that a pro rata conviction is only justifiable if the joint conviction takes effect immediately in the event that a party convicted pro rata does not pay voluntarily within a short period of time. This is because the expense of enforcement measures against several damaging parties, possibly even abroad, stands in the way of effective and complete compensation.

(5) Internal Compensation in Cases of Joint Liability

Paragraph 5 regulates the compensation of damages paid in the case of multiple damaging parties (internal relationship). As seen, all damaging parties can be held liable for the entire damage in the external relationship (paragraph 4). In the internal relationship, however, the damaging parties should only be liable proportionally, as otherwise there would be material injustice. This idea is also reflected in Recital 146 sentence 9 GDPR.

The person who has been held liable can demand compensation from the other damaging parties. In this context, it is once again established - in a mirror image of Article 82(4) GDPR - that processors and controllers are on the same level in terms of liability, even in the internal relationship.

The liability ratio shall be determined according to the causation contributions to be determined in accordance with paragraph 2. Liability may also be 100 to 0 (see above).

(6) Court Proceedings and Competent Court

Paragraph 6 first states that claims for damages must be brought before the courts (and are not determined by the supervisory authorities).

For the respective jurisdiction of the courts, reference is made to Article 79(2) GDPR (see also the respective commentary).

Recital 147 GDPR makes clear the lex specialis relationship with other provisions that also regulate jurisdiction, in particular with regard to damages proceedings. However, it has also been argued that the rules of the Brussels I Regulation should continue to apply to the extent that they are applicable with the GDPR.

Decisions

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