Christian Wirthensohn – Court Ruling (Austria, 2020)

The plaintiff, data subject, argued that the defendant, data controller, had violated their rights by processing information about their political opinions, a special category of personal data prohibited from processing in accordance with article 9 GDPR, thus causing non-material damage to them. Therefore, the plaintiff exercised their right to receive compensation resulting from article 82(1) GDPR, asking for the data controller to be held liable for the damage caused to them by the data processing which infringed the GDPR. Should a breach of GDPR provisions by a data controller be automatically considered to have caused a damage for the data subject whose data was processed unlawfully, thus granting them the right to compensation as set out in article 82(1) GDPR? = The plaintiff argued incorrect legal assessment of the case by the by the LG Feldkirch. Also, he argued that substantial facts of the case had not been established by the LG Feldkirch and that he should have been awarded the whole amount that he sued for (€ 2.500). = The defendant also argued incorrect legal assessment of the case, as - in its point of view - there had been no processing of special categories of personal data and no actual (emotional) damage occured. It argued that the plaintiff had failed to state, why and in what regard he had actually sufferd emotional damages. Consequently, the LG Feldkirch had only found, that certain GDPR provisions have been violated, but had not establised what acutal emotional damage the plaintiff had suffered. The OLG of Innsbruck rejected the claim and gave reason to the data controller, holding that the data subject had not sufficiently proved that they had suffered of a non-material damage caused by the infringement of the GDPR. The data subject should have been able to cumulatively prove the disadvantage in life and the impairment of personality rights that the breach of the law by the data controller caused for them. Only then could it have been con