LG Heidelberg - 4 S 1/21
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| LG Heidelberg - 4 S 1/21 | |
|---|---|
 | |
| Court: | LG Heidelberg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 82 GDPR |
| Decided: | 16.03.2022 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 4 S 1/21 |
| European Case Law Identifier: | ECLI:DE:LGHEIDE:2022:0316.4S1.21.00 |
| Appeal from: | AG Heidelberg (Germany) 24 C 119/19 |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | rewis.io (in German) |
| Initial Contributor: | kc |
The Regional Court of Heidelberg awarded a data subject damages in the amount of €25 pursuant to Article 82 GDPR after receiving unsolicited advertising emails.
English Summary
Facts
In April 2019, the data subject received an advertising letter from the defendant by email to his professional email address, in which a further training course organised by the controller was advertised. The data subject had neither ordered this advertisement nor otherwise consented to its receipt. He objected to such mailings by email and set the controller a deadline of 30 May 2019. In June 2019, the controller sent the data subject another advertising email for this event. The data subject claimed that the controller had unlawfully obtained his email address, as it was neither generally accessible nor communicated by him.
In January 2021, the District Court of Heidelberg (AG Heidelberg) partially granted the action and ordered the controller to cease and desist and to provide the information requested and otherwise dismissed the action with regard to the requested damages for pain and suffering. It held that a claim for damages for pain and suffering pursuant to Article 82(1) GDPR did not exist, as the data subject had not suffered any noticeable disadvantage and no objectively comprehensible impairment of personal interests of a certain weight as a result of receiving the two advertising emails.
Holding
The Regional Court of Heidelberg awarded the data subject damages under Article 82 GDPR in the amount of €25.
The court held that the data subject suffered damages because he had to deal with the unsolicited advertising emails of the controller, determine their origin, seek information from the controller by means of a letter and delete the unsolicited emails. An external effect of the infringement affecting the data subject in the sense of a risk of damage to his reputation or profession or a discriminatory effect towards third parties was not apparent. In order to compensate for the impairments suffered, the court considered the payment of €25, similar to the usual lump sum for expenses in traffic accidents for the circumstances and expenses in connection with the settlement of the claim, to be appropriate. The court further announced that the plaintiff did not suffer any further damage - regardless of whether it was material or immaterial - so that there was no further claim.
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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.
tenor
In response to the plaintiff’s appeal, the judgment of the District Court of Heidelberg dated January 7th, 2021, Az. 24 C 119/19, is amended and the rest of the appeal is rejected and reworded as follows:
The defendant is sentenced to pay the plaintiff €25.00 plus interest of 5 percentage points above the base rate since September 25, 2020.
Moreover, the application is dismissed.
The costs of the first-instance litigation are set aside against each other. The plaintiff has to bear the costs of the legal dispute in the second instance.
The judgment is provisionally enforceable. The defendant can avert the plaintiff's enforcement by providing security in the amount of 110% of the amount enforceable on the basis of the judgment if the plaintiff does not provide security in the amount of 110% of the amount to be enforced before enforcement.
The appeal against this judgment is admitted.
decision
The amount in dispute for the appeal procedure is set at €500.00.
Reasons for decision
I
1
The plaintiff is also asking the defendant to pay reasonable compensation for pain and suffering due to the following facts: On April 30, 2019 at 4:01 p.m., the plaintiff received an advertising letter from the defendant by email to his professional email address […], in which for the further training organized by the defendant was advertised "[...]" (cf. Annex K 1 in the file of the district court). The plaintiff had neither ordered this advertising nor otherwise consented to receiving it. The plaintiff objected to such mailings by email dated April 30, 2019 and warned the defendant, setting a deadline of May 30, 2019 (cf. Annex K 3 in the file of the district court). On June 3rd, 2019, the defendant again sent the plaintiff an advertising email for this event (see Annex K 4 in the file of the district court).
2
The plaintiff claimed that the defendant obtained his e-mail address illegally, since it was neither generally accessible nor communicated by him. By sending the advertising emails, the defendant therefore violated the General Data Protection Regulation.
3
The plaintiff recently requested
4
1a) The defendant will be fined up to €250,000.00, alternatively, imprisonment or imprisonment for up to 6 months if he avoids a fine of up to €250,000.00 for each case of culpable infringement, whereby the imprisonment for the defendant is on the members of the college [...], is prohibited from contacting the plaintiff by e-mail for advertising purposes and/or having it contacted without his express consent.
5
1b) The defendant is sentenced to provide the plaintiff with information about what personal data is stored at their company, also insofar as it relates to the origin and recipient, what purpose is pursued with the storage of this data and to which persons or bodies this data was or will be transmitted.
6
1c) The defendant is sentenced to pay the plaintiff reasonable compensation for pain and suffering, the amount of which is at the discretion of the court, plus interest at a rate of 5 percentage points above the respective base interest rate from the lis pendens.
7
The defendant has requested
8th
reject the complaint.
9
The defendant claimed that the plaintiff did not show that the defendant obtained his e-mail address illegally. In addition, there is no risk of repetition.
10
With its judgment of January 7th, 2021, to the facts of which reference is made unless it contains any deviating findings, the district court of Heidelberg partially upheld the action by means of a partial default judgment and final judgment and the defendant requested injunctive relief and information (claims no. 1a and 1b) convicted and the lawsuit otherwise dismissed with regard to the requested compensation for pain and suffering. There is no claim for damages under Art. 82 (1) GDPR because the plaintiff suffered no noticeable disadvantage from receiving the two advertising emails and no objectively comprehensible impairment of personality-related concerns with a certain weight.
11
Against this, the plaintiff filed an appeal after the judgment was served on January 23, 2021 with a letter dated February 22, 2021, received here on the same day, and justified this with a letter dated February 22, 2021 and further with a letter dated December 6, 2021.
12
The plaintiff and appellant claims that the sending of the advertising emails and the unauthorized processing of his personal data constitutes a massive violation of his general personality rights. He had suffered immaterial damage that could be compensated for as a result of the restriction of his informational self-determination. The impairment was also noticeable, since he had to spend working hours checking and sorting out the e-mail. Already the classification of the addressee and the setting up of spam filters require some time. In addition, according to Art. 15 GDPR, he had to request information and had to write and deliver a letter. In addition, due to the delay in providing information from the defendant, he was in the dark for months as to whether and how his personal data was being processed, which led to a thoroughly distressing loss of control. The GDPR does not contain a de minimis limit. He is therefore entitled to appropriate compensation for pain and suffering.
13
The plaintiff and appellant contend that
to set aside the judgment of the first instance insofar as the action was dismissed and to sentence the defendant in accordance with the application:
1c) The defendant is sentenced to pay the plaintiff reasonable compensation for pain and suffering, the amount of which is at the discretion of the court, plus interest at a rate of 5 percentage points above the respective base interest rate from the lis pendens.
14
The defendant and respondent defended the contested decision.
15
For the details of the state of affairs and the dispute, reference is made to the written pleadings of the parties and their annexes.
II.
16
The appeal is admissible and is successful to the limited extent that can be seen from the operative part. In this respect, the chamber issued a partial default judgment and dismissed the action, rejecting the further appeal.
17
1. The appeal is admissible.
The Chamber has allowed the appeal against the district court judgment by decision of March 16, 2022 in accordance with § 511 Para. 4 Sentence 1 ZPO.
18
Although the value of the subject matter of the complaint does not exceed the value limit of €600, contrary to Section 511 (2) No. 1 ZPO, after the amount in dispute for the application for a claim No. 1c was reduced in response to the plaintiff’s complaint about the amount in dispute by decision of the Heidelberg Regional Court of February 18, 2021 (cf . AS 365 et seq. of the files of the district court) was set at €500 as requested. The district court also did not allow the appeal in the judgment pursuant to Section 511 (2) No. 2 ZPO, since it had initially set the amount in dispute for the application in paragraph 1c in the judgment at €1,000 and a decision to allow an appeal was not necessary afterwards. However, if the court of first instance saw no reason to allow the appeal under Section 511 (4) ZPO because it set the value in dispute at over €600 and therefore assumed a corresponding value for the complaint of the unsuccessful party, the court of appeal considers this value is not deemed to have been reached, the court of appeal, which in this respect is not bound by the determination of the amount in dispute by the court of first instance, must make up for the decision as to whether the requirements for the admission of the appeal under Section 511 (4) sentence 1 no. 1 ZPO have been met, since the different evaluation must not be to the detriment of the parties (cf. BGH, judgment of November 14, 2007, case no.: VIII ZR 340/06 = NJW 2008, 218).
19
Here the appeal according to § 511 Abs. 4 S. 1 ZPO was to be allowed, since the legal matter is of fundamental importance and the securing of a uniform case law requires a decision of the court of appeal (§ 511 Abs. 4 S. 1 No. 1 ZPO) and the plaintiff after changing the amount in dispute for application no. 1c was not weighed down by more than €600 (§ 511 Para. 4 S. 1 No. 2 ZPO). The question of whether and, if so, under what conditions a claim for damages or compensation for pain and suffering exists under Art. 82 GDPR is a controversial issue in case law and literature and is treated differently.
20
2. The appeal is also justified to a small extent. Insofar as the application for appeal was justified according to the plaintiff's submission and the plaintiff was awarded €25.00, a reason pursuant to Section 313b (1) ZPO is not required due to the partial default judgment.
21
Otherwise, the lawsuit was to be dismissed and the further appeal dismissed, because the plaintiff has no further claim. The claim of the plaintiff does not justify a higher claim for damages or compensation for pain and suffering. The Chamber is convinced that the plaintiff only suffered compensable damage of €25.00 due to the defendant's violation of Art. 6 GDPR through the inadmissible processing of his personal data.
22
a) The Chamber interprets the plaintiff's application to mean that the plaintiff is seeking damages for the impairments suffered by the defendant as a result of the GDPR violation, regardless of the term "pain and pain" from German civil law used by the plaintiff.
23
(1) This does not conflict with the fundamental commitment to the plaintiff's application pursuant to Section 308 (1) ZPO, according to which the court is not authorized to award a party something that has not been requested. Because the mere wording of an application cannot be decisive, but the will embodied by it. Accordingly, it is not only necessary to check whether the application makes clear sense on its own, but also to consider the reason given for the application (MüKo-ZPO/Musielak, 6th edition 2020, ZPO § 308 marginal number 6 m.w.N.). In an interpretation made by the court, the principle is to be assumed that in case of doubt what is intended is what is reasonable according to the standards of the legal system and corresponds to the well-understood interests (MüKo-ZPO/Musielak, 6th ed. 2020, ZPO § 308 Rn. 6).
24
According to this, the chamber interprets the plaintiff's application against the background of his reasoning for appeal and his interest in compensation under Art. 82 GDPR to the effect that the plaintiff is demanding payment of damages from the defendant. Although the plaintiff's unspecified application is aimed at the payment of appropriate compensation for pain and suffering, the plaintiff bases his claim on Art. 82 GDPR, a norm of European law. The German terms are not decisive, but rather those of European law or those of the GDPR. However, the term "pain and suffering" is not used in Art. 82 GDPR or in the other norms of the GDPR. Art. 82 (1) GDPR only standardizes a “claim for damages” for every person who has suffered “material or immaterial damage” due to a violation of the GDPR. The Chamber is therefore convinced that the plaintiff's application number 1c) should be interpreted in the light of the plaintiff's claim based on the GDPR and should be understood to mean that he is seeking the payment of damages.
25
(2) It is irrelevant whether the plaintiff based the claim for damages solely on “material” or “immaterial” damage. Insofar as the plaintiff describes his damage as "immaterial" damage, this does not bind the Chamber to the examination of exclusively immaterial damage. Rather, possible material damage that may result from the plaintiff's arguments must also be examined in favor of the plaintiff, since the Chamber is convinced that Art. 82 (1) GDPR is based on a uniform concept of damage that is to be interpreted broadly. The Chamber determined this by interpretation.
According to the wording of Art. 82 GDPR, any person who has suffered “material or immaterial damage” as a result of a violation of this regulation has a “right to compensation”. In contrast to German law, for example with Section 253 BGB, the GDPR does not recognize any different standards or bases for claims, but contains a uniform basis for claims in Art. 82 (1) GDPR for a uniform claim for damages.
26
The recitals to the GDPR also suggest a broad understanding of the concept of damage. In this respect, Recital 146, which refers to the claim for damages in Art. 82 GDPR, is decisive. Conceptually, this recital does not differentiate between material and non-material damage. Rather, only the term “damage” is used here, without it being understood that only material or only immaterial damage is meant. A broad interpretation of the concept of damage is also required according to p. 3 of the recital, according to which the concept of damage is to be interpreted “broadly” in the light of the case law of the Court of Justice.
27
Recital 75 of the GDPR, which gives examples of possible "physical, material or immaterial damage" that can result from the processing of personal data, such as discrimination, identity theft or identity fraud, financial loss, also speaks for a uniform understanding of the term damage , damage to reputation or other significant economic or social disadvantages. The list also does not differentiate between different types of damage, but rather contains both possible material and immaterial impairments.
b) After interpreting the claim of the plaintiff in the light of a uniform, broadly understood claim for damages according to the GDPR, the Chamber is convinced that the plaintiff is entitled to a claim for damages according to Art. 82 (1) GDPR in the amount of €25.00.
28
The plaintiff suffered damage because he had to deal with the defendant's unwanted advertising e-mails, determine their origin, seek information from the defendant by means of a letter and delete the unwanted e-mails. There is no apparent external effect of the violation affecting the plaintiff in the sense of a risk of damage to reputation or profession or a discriminatory effect on third parties.
To compensate for the impairments suffered, the Chamber considers the payment of €25 to be appropriate, similar to the usual flat-rate expense allowance in traffic accidents for the circumstances and expenses in connection with the settlement of the claim.
29
The Chamber is convinced that the plaintiff did not suffer any further damage - regardless of whether it was material or immaterial - so that there is no further claim.
30
c) The decision on the interest follows from § 291 ZPO. The complaint was served on the defendant on September 24, 2020 (cf. AS 223 of the file of the district court).
III.
31
1. The decision on costs follows from §§ 92 Paragraph 1, Paragraph 2 No. 1 analogously, 97 Paragraph 1 ZPO. The statement on the provisional enforceability follows from §§ 708 No. 10, 711 ZPO.
32
2. The revision was allowed because the legal matter is of fundamental importance and the safeguarding of a uniform case law requires a decision of the Court of Appeal (§ 543 Section 2 Clause 1 ZPO). The question of whether and, if so, under what conditions a claim for damages or compensation for pain and suffering exists under Art. 82 GDPR is a controversial issue in case law and literature and is treated differently.
33
3. The Chamber has refrained from making a referral to the Court of Justice of the European Union as part of a preliminary ruling procedure pursuant to Article 267(2) TFEU. There is no obligation to submit according to Art. 267 (3) TFEU, as there is no final decision due to the approved revision.
