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The European Court of Justice has issued a non-binding opinion on victim compensation

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The advocate general of the European Court of Justice has issued a non-binding opinion that privacy advocates fear will further limit users’ ability to assert their privacy rights under the GDPR. 

According to last week’s opinion, Europeans would be hard-pressed to receive compensation if their rights are violated under the General Data Protection Regulation, even though the EU’s data protection regulation provides for a compensation claim for intangible damages.   

The opinion was issued in response to an Austrian case in which the national postal service illegally calculated the political affiliation of millions of Austrians, in violation of the GDPR. Names, addresses, and dates of birth were used as underlying data for their algorithm. 

In October 2019, the Austrian Data Protection Authority fined the Austrian national postal service €18 million for violating the GDPR after using these personal data elements to provide marketing services to various political parties for advertising.

A Viennese plaintiff, associated with the right-wing Freedom Party through the algorithm, also sued the postal service for intangible damages, claiming €1,000 for the anger, loss of trust and sense of exposure suffered. He said that being associated with the right-wing party was insulting, shameful and very damaging to his reputation. 

His claims were rejected by the first and second instance courts, which argued that the embarrassment and inconvenience was below the threshold for compensation. 

The Austrian Supreme Court then referred the case to the European Court of Justice, asking whether the award of moral damages could be limited if a plaintiff’s anger does not go beyond anger over the violation of GDPR rights. 

According to the nonprofit organization noyb, founded by Max Schrems and based in Austria, this definition would include all types of anger arising from a violation of the GDPR. Therefore, intangible damages for GDPR violations would hardly be awarded. 

Max Schrems, attorney and privacy advocate, said, « This case is deeply troubling. If the opinion of the Austrian Supreme Court and the Advocate General prevails, most users will never again see compensation for GDPR violations. »

While the opinion points to other options besides damages, such as declarations, nominal damages or injunctions, it appears to allow EU countries to create their own thresholds that may limit compensation for intangible damages under the GDPR.

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