The High Court recently decided that for damages to be recoverable by a data subject for breaches of the Data Protection Acts, the data subject must prove that he suffered loss as a result of the breaches.

In the case of Michael Collins v FBD Insurance plc, Mr Collins was awarded damages of €15,000 by the Circuit Court for 4 breaches of the Data Protection Acts by the defendant insurance company. The breaches arose out the manner in which a private investigator obtained and processed personal data of the plaintiff, including a criminal conviction, on behalf of the insurance company defendant, and the failure by the insurance company to respond to data access requests in a timely manner.

The only question for the High Court was, in order for the plaintiff to be entitled to damages for breach of section 7 of the Data Protection Acts, did the plaintiff have to prove to the court that he had suffered loss or damage arising from the breaches of the Act.

Section 7 provides that “for the purposes of the law of torts and to the extent that the law does not so provide, a person being a data controller or data processor, shall, so far as regards the collection by him of personal data ….. or his dealing with such data, owe a duty of care to the data subject concerned.”

The plaintiff contended that he was entitled to general damages for breach of that duty of care owed to him by the data controller, without having to show any particular loss caused to him from the breach. However, the High Court decided that neither the Data Protection Acts, nor the EU Directive which the Acts implement, gives an automatic payment of compensation. The Act does allow the data subject to be compensated for damage he has suffered, but only on proof by the data subject that he has suffered loss and damage arising from the breaches.

This case will be of some assistance to data controllers and processors in determining what their exposure will be arising from their breaches of the duty of care owed to data subjects under the Data Protection Acts.