INTRODUCTION
In Case C-300/21, Österreichische Post, the ECJ addressed the fundamental issue of whether the right to compensation in Article 82 of the General Data Protection Regulation (GDPR) applies to non-material damage regardless of how serious that damage is. Thus, when the Court ruled that the concept of ‘damage’ in Article 82 of the GDPR does not contain any threshold of seriousness, experts saw this as a much-needed clarification, a win for privacy advocates, and a route to a wider usage of collective redress mechanisms. Indeed, given the widespread occurrence of liminal non-material damage arising from breaches of the GDPR (such as your loss of time and annoyance caused when you interact with the many illegal cookie banners on websites), this decision appears to be vital for the protection of individuals from everyday online harms.
Yet contrary to what some may believe, it is argued here that the Österreichische Post judgment did not fully answer the main question it was asked and, in effect, made it more (not less) complicated to seek compensation for liminal harms pursuant to Article 82 of the GDPR …
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Václav Janeček and Cristiana Teixeira Santos, The autonomous concept of ‘damage’ according to the GDPR and its unfortunate implications: Österreichische Post, Common Market Law Review, volume 61, issue 2, pp 531-544 (2024).
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