Court case 6 Ta 49/22 – Court Ruling (Germany, 2022)

The controller operated a care service where the data subject was employed. The controller filmed the data subject in their work environment and published a thirty-six second video on Youtube for promotional purposes. The data subject had previously given verbal consent to the filming but had not received any further information about the purpose of the filming or their rights. Later, the data subject objected to the use of the video and claimed €6,000 in damages during proceedings before the labour court. The controller deactivated the video immediately afterwards. The parties involved reached an agreement and settled the dispute. The data subject had applied for legal aid for claiming damages up to €6,000. The ArbG Kiel granted it up to the amount of €2,000. Thereupon, the data subject then appealed to the LAG Schleswig-Holstein for legal aid in the amount of €6,000. The court upheld the original decision. The controller infringed the GDPR by filming the data subject and publishing the clip because the data subject had not given written consent and was not informed about the purpose of the data processing or their right to withdraw consent. The data subject is entitled for maximum damages of up to €2,000, but not €6,000 as requested. The data subject does not have to prove that damage within the meaning of Article 82(1) GDPR has occurred, as a breach of the GDPR itself constitutes non-material damage. Recital 146, sentences 1 and 6 GDPR support this interpretation, as the claims for damages serve to support the objectives of the Regulation and in particular to provide effective protection of individuals’ rights. The court confirmed that damages in this case can amount to a maximum of €2,000. The controller did not film the data subject in intimate situations or discriminate them and the data subject gave verbal consent to be filmed. Furthermore, the controller reduced the harm by taking the video down immediately after the data subject requested it. However, on the other hand, the controller was not only using photographs, but moving images for a commercial purpose. The court found that damages of €6,000 would not be justified in these circumstances. In similar cases, even lower amounts than €2,000 were awarded, or the cases were more severe because the controller’s actions were discriminating.