‘Mere Upset’ Not Sufficient for GDPR Compensation Claims


On 6 October 2022, Advocate General Manuel Campos Sánchez-Bordona issued an opinion concerning the right to compensation for non-material damage under the GDPR (the “Opinion”). The Advocate General found that data subjects are not entitled to compensation for non-material damage by showing “mere upset” at an infringement of the GDPR. Article 82(1) GDPR provides that a data subject has the right to receive compensation for material or non-material damage suffered as a result of a breach of the GDPR.


Case C-300/21 UI v Österreichische Post AG relates to a referral to the Court of Justice of the European Union (the “CJEU”) from the Austrian Supreme Court that arose from a dispute between a data subject and Österreichische Post. The data subject took issue with Österreichische Post affiliating him with a far right political party and claimed EUR 1,000 from Österreichische Post. The data subject claimed that the listing of him as having a “high affinity” with the political party was insulting, shameful and extremely damaging to his reputation. The data subject also claimed that Österreichische Post’s conduct caused him great upset, a loss of confidence and a feeling of public exposure.

The Austrian courts had previously granted the data subject’s request that Österreichische Post cease such processing but had dismissed his damages claim. An appeal court had previously held that compensation is intended for consequences that go beyond “annoyance and emotional damage”.


The Opinion

The Advocate General opined that Article 82 GDPR is to be interpreted as meaning that a mere infringement of Article 82 is not in itself sufficient to result in compensation if that infringement is not accompanied by relevant material or non-material damage. The Advocate General further opined that compensation for non-material damage provided in the GDPR does not concern “mere upset” which a data subject may feel as a result of a breach of the GDPR. The Advocate General opined that it is for the national courts to determine when a “subjective feeling of displeasure” may be deemed to constitute non-material damage.

The Advocate General recognised that there is a “fine line” between mere upset (which is not eligible for compensation) and genuine non-material damage (which is eligible for compensation) and noted the complicated task of distinguishing between the two categories and applying them to a particular dispute.

The Advocate General also commented on the purpose of the GDPR, noting “The aim of the GDPR is not, I stress, to limit systematically the processing of personal data but rather to legitimise it under strict conditions. That aim is served especially by promoting confidence on the part of data subjects that processing will be carried out in a safe environment, to which the data subjects themselves contribute.”

Claims for non-material damage under Article 82 GDPR have increased in recent years and a number of cases have been referred to the CJEU concerning the interpretation of Article 82 GDPR. While the Opinion is not binding on the CJEU, it is likely to be influential and the Court often follows Advocate General opinions. The Opinion is a welcome indication of the potential approach the CJEU could adopt to the interpretation of Article 82 GDPR.


Article provided by INPLP member: Rob Corbet (Arthur Cox LLP, Ireland)



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