Difference between revisions of "OLG Innsbruck - 1 R 182/19b"

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OLG Innsbruck - 1 R 182/19b
Court: Oberlandesgericht Innsbruck (Austria)
Jurisdiction: Austria
Relevant Law: Article 82 GDPR
Article 99(2) GDPR
§ 29(1) Austrian Data Protection Act (DSG)
§ 69(5)Austrian Data Protection Act (DSG)
§ 70(1)Austrian Data Protection Act (DSG)
§ 1293 Austrian Civil Code (ABGB)
Decided: 13.2.2020
Published: n/a
Parties: Christian Wirthensohn, Österreichische Post AG
National Case Number/Name: 1 R 182/19b
European Case Law Identifier: n/a
Appeal from: Landesgericht Feldkirch
[Cg 30/19b]
Appeal to:
Original Language(s): German
Original Source: [ (in German)]
Initial Contributor: n/a

Austria's Oberlandesgericht Innsbruck rejects claim for damages for the processing of the likeliness of the political affiliation of the data subject due to lack of substantiation and evidence regarding the emotional damages sufferd by the data subject.

English Summary


The OLG Inssbruck's judgment was given follwing an appeal of both parties after the decision of the LG Feldkirch (https://gdprhub.eu/index.php?title=LG_Feldkirch_-_57_Cg_30/19b_-_15). In this decision the LG Feldkirch awarded the data subject and plaintiff Dr. Christian Wirthensohn (a privacy lawyer) € 800 for sufferd emotional damages due to the processing of the likeliness of the political affiliation by the defendant Österreichische Post AG.



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).


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.


The OLG Innsbruck waived the plaintiff's appeal, followed the defendant's appeal and rejected the plaintiff's claim. Initially, the OLG Innsbruck ruled, that the GDPR was fully applicable on the case, pursuant to Article 99(2) GDPR and § 69(5) Austrian Data Protection Act (DSG), since the data processing had started prior to the GDPR's applicability but had continued after 25.5.2018. It then follwed the defendant's arguments and ruled that Article 82 GDPR and § 29 DSG in connection with § 1293 Austrian Civil Code (ABGB) require the suffering of an actual (material or non-material)damage, in order to award damages. The plaintiff - who was under the burden of proof - had failed to substantiate its claim for damages and to provide evidence for it. The plaintiff had merely stated, that he was "bothered" by the processing of his data but had not argued any severe suffering such as consequences on his health or his professional advancement. An appeal to the Austrian Supreme Court (OGH) is not possible, as the matter in dispute is below € 5.000.


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).

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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.