Claims for non-material damages are on the rise. Plaintiffs are arguing that certain alleged unlawful behaviour by defendants led to hardship, simply made them feel bad or put them under psychological pressure. Plaintiffs base these claims on various legal grounds, such as data protection law (Art. 82 GDPR, Sec. 29 DPA 2018), but also civil law, such as Sec. 1328a of the Austrian Civil Code on tortious liability for infringements of the private sphere.
Can a court simply hear a Plaintiff's testimony, find that Plaintiff felt bad because of the unlawful behaviour and then award compensation for non-material damages? The Austrian Supreme Court ruled in January 2020 that an employee whose company car was tracked, without his consent, by his employer via GPS, during working hours and free time, may claim non-material damages due to infringement of his private sphere under Austrian civil law. Plaintiff had no knowledge about the car being fitted with a GPS localisation system. Upon realising that he was being tracked, Plaintiff objected and asked that at least during his free time it would be stopped. Plaintiff's supervisor also called Plaintiff several times in the morning and asked why he had not left his home earlier. Four persons in Defendant's company had permanent access to the GPS data via the internet.
The Supreme Court held that only a substantial infringement warrants compensation for non-material damages and not just any infringement of the private sphere . Such a threshold is a general barrier for any claims for non-material damages for infringement of personal rights. However, inconveniences caused by being tracked by an employer via GPS without consent passes this threshold.
Therefore, any Plaintiff must assert and prove (!) a substantial infringement of his personal rights in order to fulfil the requirements of compensable damage, in addition to causation, unlawfulness and culpability, just like any other compensation claim. This principle has also been confirmed by the Upper Regional Court Innsbruck in a data protection damages case in March 2020.