Court case 3 Sa 33/22 – Court Ruling (Germany, 2023)

The data subject was employed as a wrapping technician by the controller, a company in the advertising technology industry. While employed, the data subject agreed to the production of photos and a promotional video which featured him prominently. After leaving the company on 1 May 2019 to work for a competitor, the data subject requested the controller multiple times to cease using and delete the photos and video featuring him, but the controller initially did not comply. On 21 February 2020, the controller finally removed the materials after receiving multiple formal requests from the data subject’s legal representative. The data subject sought non-material damages under Article 82 GDPR due to these violations, including the unauthorized use of their image for commercial purposes. The LAG Baden-Württemberg decided that the delayed response to an access request under Article 15 GDPR does not constitute non-material damage in itself. The court clarified that a mere breach of GDPR provisions is not sufficient to establish a claim for damages under Article 82 GDPR. The rationale is that the law requires concrete evidence of harm beyond the violation of GDPR regulations. First, the court held that the controller’s unconsented use of the data subject's image post-employment violated Article 17 GDPR, justifying a compensation of €10,000 due to the significant damage to their personality rights along with the commercial exploitation without permission. Second, it addressed the data subject's request for detailed information on all personal data processed by the controller under Article 15 GDPR. The court noted this request lacked the specificity required by § 253(2) No. 2 ZPO. Consequently, it ruled that a general request for all personal data does not meet the necessary clarity and precision. Finally, the court rejected the claim for additional damages due to the delayed compliance with the access request, ruling that no non-material damage was proven by the data subj