The question of what is needed for successful damages claims under Article 82 of the EU General Data Protection Regulation (GDPR) continues to keep courts busy. However, though the matter is still far from settled, the contours of how to handle GDPR damages claims are slowly taking shape. This was again recently shown by the ruling (in German) of the German Higher Regional Court of Brandenburg (‘the Court’) on the eligibility criteria for GDPR damages claims.

The circumstances of the case were as follows: the claimant had their name and picture unlawfully published online, following which they claimed for damages under the GDPR. According to Article 82(1) GDPR, ‘any person who has suffered material or non-material damage as a result of an infringement of [the GDPR] shall have the right to receive compensation from the controller or processor for the damage suffered’.

Concrete evidence of material damage needed

The Court rejected the claim and ruled that a claim for damages under Article 82 GDPR can only succeed if there is concrete evidence of material damage, which was not the case in the matter at hand.

Such a position is not new, with the Higher Regional Labour Court of Baden-Württemberg (in German) and the Higher Regional Court of Bremen (in German) having already considered that an Article 82(1) GDPR claim for compensation requires the claimant to show concrete evidence of damage – simply making an allegation is not enough.

Nonetheless, the decision of the Court shows an increasingly clear direction taken by courts regarding the materiality of the damage required to substantiate a claim as well as the corresponding burden of proof.

Materiality of the damage vs. threshold of material damages

Regarding the request for a preliminary ruling before the Court of Justice of the European Union (CJEU), the Court stated that there was no need to refer the matter to the CJEU as the wording of Article 82(1) and (3) GDPR was clear. This position does not contradict the January 2021 decision of the German Federal Constitutional Court.

Indeed, the question before the Court related to whether or not the claimant had suffered damage at all, while the German Federal Constitutional Court, agreeing that the claimant had suffered damage, instead had to decide whether or not the material threshold for damages had been reached.

Questions remain open

While the CJEU’s ruling on the request for a preliminary ruling by the German Federal Constitutional Court on a material threshold applying to damages claims under Article 82 of the GDPR is still to be adopted, the Court’s decision should be welcomed as it brings greater clarity to an area whose boundaries are still blurred. Nonetheless, many questions remain open, making the handling of damages claims particularly difficult for stakeholders.