Court case 3 C 112/24 – Court Ruling (Germany, 2024)

The data subject used the social network operated by the controller. Until 07 November 2023 it’s service was free of cost. After that, the controller explicitly demanded a consent for personalised advertisement in order to continue the social network for free. The data subject consented and did not opt for the payment model that would have allowed using the platform without consenting to the advertisement (“pay or okay”). For the time before his consent, the data subject claimed €1,500 in non-material damages alleging that, without consent, the processing of his personal data for advertisement purposes had been illegal. He alternatively based his claim on what the court refers to as a reversed licence analogy: Before consenting to personalised advertisement, the data subject had used the social network for 66 months. Referring to the post 2023 payment model’s monthly cost of €20, the data subject claimed 66 * €20 = €1,320 in unjust enrichment. The court held that the claim based on two different legal bases was too vague and therefore inadmissible under [https://www.gesetze-im-internet.de/zpo/__253.html § 253(2)(2) German Civil Process Order] (Zivilprozessordnung – ZPO). This is due to the fact that if the court decides by, e.g., granting the claim on the basis of unjust enrichment, there would be no decision on the non-material damages. Therefore, the controller couldn’t determine if the data subject would sue again. This happens, when one claim is based on two matters of dispute rather than two legal bases for the same claim. The court held that non-material damages and unjust enrichment claims were two matters in dispute since the claimed damage is non-material while the claimed unjust enrichment is about a material amount of money that allegedly is still within the assets of the controller. Both are two different things: A damage of the data subject does not necessarily correspond with a material enrichment of the controller and, vice versa, an unjust enrichme