Dis­trict Court of Essen: Brea­ches of noti­fi­ca­ti­on duties may trig­ger dama­ge com­pen­sa­ti­on claims in accordance with the GDPR

In a recent ruling of 23 Sep­tem­ber 2021 (Case 6 O 190/21) (PDF only in Ger­man), the Dis­trict Court of Essen (only in Ger­man) dealt with dama­ge com­pen­sa­ti­on claims due to the vio­la­ti­on of report­ing and noti­fi­ca­ti­on duties based on the GDPR. The Court thus unders­cored for com­pa­nies the need for pre­cau­ti­ons and firm struc­tures to meet legal obli­ga­ti­ons in a time­ly man­ner in the event of data brea­ches. Moreo­ver, the­re is reason to weigh data pro­tec­tion risks when sen­ding data car­ri­ers by mail.

Sta­te of affairs

The plain­ti­ff and his wife appli­ed for real estate finan­cing from a bank. For this pur­po­se, they drop­ped a USB stick con­tai­ning a lar­ge amount of per­so­nal infor­ma­ti­on inten­ded to pro­ve their own finan­cial stan­ding, as well as iden­ti­fi­ca­ti­on and tax docu­ments, into the defen­dan­t’s mailbox.

Once the inten­ded con­clu­si­on of the con­tract did not take place, the bank retur­ned the USB stick to the plain­ti­ff by regu­lar mail. Howe­ver, the data car­ri­er was appar­ent­ly lost in the mail. After the cou­ple noti­ced the loss of the USB stick, the wife assi­gned her claims to her hus­band. The lat­ter then deman­ded dama­ges of at least €30,000 from the defen­dant bank.

Mate­ri­al con­side­ra­ti­ons of the court

The Dis­trict Court of Essen initi­al­ly sta­tes in its ruling that an assign­ment of non-material dama­ge com­pen­sa­ti­on claims based on Artic­le 82 GDPR is in prin­ci­ple pos­si­ble. Sin­ce the assi­gna­bi­li­ty of non-material dama­ge com­pen­sa­ti­on claims is gene­ral­ly reco­g­nis­ed in Ger­ma­ny and the GDPR does not con­tain any vari­ant pro­vi­si­ons in this regard, this does not come as a sur­pri­se. Of grea­ter importance, on the other hand, are the comm­ents on the report­ing and noti­fi­ca­ti­on duty based on Artic­les 33 and 34 GDPR.

In accordance with Artic­le 33 GDPR, the con­trol­ler must noti­fy a per­so­nal data breach to the com­pe­tent super­vi­so­ry aut­ho­ri­ty wit­hout delay, if pos­si­ble within 72 hours. The requi­red noti­fi­ca­ti­on had been omit­ted by the defen­dant. It is inte­res­t­ing to note that, accor­ding to the Court, even a for­mal breach of the noti­fi­ca­ti­on duty can estab­lish a dama­ge com­pen­sa­ti­on cla­im. The ques­ti­on of whe­ther or not the data sub­jects them­sel­ves were alre­a­dy awa­re of the inci­dent is not to be given any weight. The pur­po­se of the norm is not mere­ly to pro­tect the indi­vi­du­al data sub­jects. Ins­tead, the norm also ser­ves to crea­te incen­ti­ves for the data con­trol­ler to pre­vent future breaches.

The Dis­trict Court of Essen also con­siders Artic­le 34 of the GDPR to have been vio­la­ted. Accor­ding to this, the data con­trol­ler must inform not only the super­vi­so­ry aut­ho­ri­ties but also the data sub­jects about a data loss. In the pre­sent case, howe­ver, the defen­dant only beca­me awa­re of the loss from the data sub­jects. Howe­ver, the Dis­trict Court of Essen ruled that this too was irrele­vant. In addi­ti­on to mere know­ledge of the breach, the noti­fi­ca­ti­on in accordance with Artic­le 34(2) in con­junc­tion with Artic­le 33(3), Lite­ri b, c and d GDPR includes fur­ther aspects, such as a descrip­ti­on of the mea­su­res taken or pro­po­sed by the con­trol­ler to address the per­so­nal data breach. Sin­ce a noti­fi­ca­ti­on with this infor­ma­ti­on had been omit­ted, Artic­le 34 GDPR had also been violated.

Pur­su­ant to Artic­les 24 and 32 GDPR, the data pro­ces­sor must take appro­pria­te tech­ni­cal and orga­ni­sa­tio­nal mea­su­res to ensu­re a level of secu­ri­ty appro­pria­te to the risk. Both pro­vi­si­ons expli­cit­ly men­ti­on pseud­ony­mi­sa­ti­on and encryp­ti­on of per­so­nal data as an exam­p­le of such mea­su­res. Hence, it was not at all far-fetched for the plain­ti­ff to main­tain that the unen­crypt­ed sen­ding of the USB stick con­sti­tu­ted a vio­la­ti­on of tho­se very provisions.

The com­pe­tent divi­si­on of the Dis­trict Court of Essen saw things dif­fer­ent­ly. The­re was no appa­rent breach of duty of any kind on the part of the acting bodies as a result of the unen­crypt­ed dis­patch of the docu­ments, the Court argued. Final­ly, sen­si­ti­ve data in prin­ted form, such as docu­ments from lawy­ers or tax advi­sors, are also sent unen­crypt­ed. Not­hing dif­fe­rent should the­r­e­fo­re app­ly to the dis­patch of data carriers.

This opi­ni­on seems at least ques­tionable. Artic­le 32 GDPR pro­vi­des for a rela­ti­ve approach, in which the effort invol­ved with poten­ti­al secu­ri­ty mea­su­res and the risk to the data sub­ject are to be weig­hed against each other. Simp­le encryp­ti­on of data on a USB stick takes very litt­le effort. In con­trast, encryp­ti­on of prin­ted docu­ments is not rea­di­ly pos­si­ble. The­r­e­fo­re, a vari­ant approach inde­ed appears to be very justifiable.

The fact that the Court did not award the plain­ti­ff the dama­ge com­pen­sa­ti­on cla­im despi­te the estab­lished breach of the noti­fi­ca­ti­on duties was due to the fact that the plain­ti­ff had not demons­tra­ted any con­cre­te non-material dama­ge. In this respect, the Dis­trict Court of Essen refers to the prin­ci­ples deve­lo­ped by legal rulings on the basis of § 253 of the Civil Code (only in Ger­man). Mere “dis­com­fort” due to the loss of the USB stick wit­hout the asser­ti­on of fur­ther impair­ment was the­r­e­fo­re not suf­fi­ci­ent to con­sti­tu­te com­pen­sable dama­ge. Howe­ver, the judgment does not explain how this argu­men­ta­ti­on can be recon­ci­led with the pri­ma­cy of Euro­pean law over natio­nal law.

Con­clu­si­on and recom­men­da­ti­on for companies

Even if the Dis­trict Court of Essen ulti­m­ate­ly denied the dama­ge com­pen­sa­ti­on cla­im, it found that even a for­mal breach of report­ing and noti­fi­ca­ti­on duties can estab­lish a cla­im on the merits. To pre­vent such claims, com­pa­nies should have appro­pria­te pro­ces­ses in place so that, in the event of any inci­dents, exis­ting legal obli­ga­ti­ons can be imple­men­ted prompt­ly as part of a legal inci­dent respon­se.

Fur­ther­mo­re, the court was of the opi­ni­on that the GDPR does not pre­vent the unen­crypt­ed sen­ding of data car­ri­ers by mail. Whe­ther this view will pre­vail in the long run, howe­ver, seems quite ques­tionable in light of the clear for­mu­la­ti­ons in Artic­le 32 GDPR. In cases of doubt, we the­r­e­fo­re recom­mend that you at least encrypt data car­ri­ers con­tai­ning sen­si­ti­ve per­so­nal data befo­re sen­ding them, or that you exami­ne in more detail the pos­si­bi­li­ty of obtai­ning con­sent to send them unencrypted.

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