In a decision
dated 7 November 2018 (Ref.: 8 C 130/18), the Diez local court dealt with the question of whether the unauthorized sending of an advertising email could result in the payment of damages according to the GDPR.
On 25 May 2018, the plaintiff received an email from the defendant in which the defendant asked for consent to the newsletter subscription with regard to the enactment of the GDPR. The plaintiff considered this to be unlawful data processing and thus a violation of Art. 6 GDPR, which gives him a claim – regardless of negligence – for compensation for his material and immaterial damages in accordance with Art. 82 (1) GDPR.
The defendant acknowledged a claim of the plaintiff in the amount of EUR 50 (plus interest for the trial!), whereupon a partial judgment by confession was issued on 7 September 2018. However, the plaintiff subsequently requested from the defendant the payment of a further compensation amounting to at least EUR 500.
The court rejected this. It would already be clear from the wording of Art. 82 GDPR that a mere breach of the GDPR without damage would not lead to liability. On the one hand, a serious violation of the right of personality was no longer necessary, but on the other hand, compensation was still not to be granted for minor infringements or for any inconvenience solely felt individually. With reference to the relevant commentary literature, the court stated that a perceptible disadvantage must have arisen for the person concerned and that it must be a matter of an objectively comprehensible impairment of personality-related interests with a certain weight.
Taking this into account, the court came to the conclusion that a claim for damages, if it had existed at all, would in any case be settled with the acknowledged amount.
The court left the question open whether the unauthorized sending of an advertising email can justify a claim for damages at all. However this seems rather devious due to the judicial reference to the necessary perceptible impairment. However, this does not affect the risk of a written warning among competitors on the grounds of Sec. 7 UWG in such cases.
Author: Maximilian Wegge