Lennart Schiek, student assistant at the HBI, has published an essay in the most cited and oldest German journal on data law, "Datenschutz und Datensicherheit - DuD". In his article, he undertakes an attempt to categorise Article 82 of the GDPR from a civil-dogmatic point of view.
Link to the article (in German)
Art. 82(1) GDPR does not contain a definition of "non-material damage". In particular, it remains open whether Article 82(1) GDPR also covers cases in which the data subject suffers only minor damage, such as the risk of unauthorised disclosure of the data to third parties, mere annoyance or displeasure, as well as cases in which the impairment of the data subject is exhausted in the mere infringement of rights or the loss of control over the data, without a non-material loss that can be clearly distinguished from the mere breach of the GDPR being able to be proven. The wave of submissions on the question of whether such an expansion of the concept of damage is possible in a system-compliant manner or whether it leads to punitive damages that are alien to the system is fuelling with new urgency the decades-old discussion on the extent to which union claims for damages pursue a behavioural control objective in addition to a pure compensation objective. After an overview of the practical relevance, the article introduces the state of opinion and presents the connection between compensation and conduct control in the civil law system. Subsequently, the relevant ECJ case law according to Recital 146 p. 3 of the GDPR is examined for preventive elements.
studies law at the Ruprecht-Karls-University of Heidelberg. He is a student assistant at the chair of Prof. Dr. Thomas Lobinger and at the Leibniz Institute for Media Research in Hamburg. E-mail: firstname.lastname@example.org
Schiek, L. (2023): ,,Schadensersatz ohne Schaden‘‘ nach der DSGVO? ["Damages without Damages" after the GDPR?]. In: Datenschutz Datensich 47, 144–148 (2023). https://doi.org/10.1007/s11623-023-1734-8
(Hamburg, 18 April 2023)