unknown (claimant) – Court Ruling (Austria, 2021)

The defendant conducts (i.a.) business as an address publisher under § 151 Austrian Trade Regulation Act (Gewerbeordnung 1994 - GewO) and sells personal data for third-party marketing purposes. Starting in 2017, the defendant had created information on the presumed "affinities for political parties" of the entire Austrian population. This was done by gathering and combining information from anonymized polls and statistics on election results via an algorithm. As a result, individuals were assigned to one or more marketing groups and classifications regarding political affinity depending on their place of residence, age, gender, etc. The defendant had (i.a.) assessed that the claimant was likely to be interested in the far-right Austrian Freedom Party (FPÖ). After the claimant had learned this (following an access request under Article 15 GDPR), he filed a lawsuit against the defendant. He requested (i) an injunction that the defendant had to refrain from processing data on his presumed political opinions and (ii) € 1,000 in damages since he considered the alleged affinity to the FPÖ an insult, shameful and highly damaging to credit. The defendant had not disclosed the claimant's data to third parties. By 04.06.2019, the defendant had erased all data on "affinities for political parties", including those of the claimant. Throughout all court instances, the defendant argued that data on the "affinity for a political party" do not qualify as personal data, let alone special categories of personal data. The first-instance court (Landesgerichts für Zivilrechtssachen Wien) upheld the request for an injunction but rejected the request for damages, stating that the threshold for compensable immaterial damage had not been reached. The second-instance court (Oberlandesgericht Wien) confirmed this judgment. Both claimant and defendant appealed against this decision: the claimant appealed against the rejection of his request for damages, the defendant against the injunction to