Lawyers at Fieldfisher say that a Circuit Court judgment delivered last week provides some clarity in relation to the level of compensation to be awarded in cases involving non-material damage.

In a note on the firm’s website, Killian O’Reilly and Neil Cahill say that the written decision is the first in this jurisdiction to consider the value of these claims.

In Arkadiusz Kaminski v Ballymaguire Foods Limited, an award of €2,000 was made in circumstances where the court found that there was an infringement of the plaintiff's rights under GDPR rules on the processing of personal data.

Judge John O’Connor also ruled that the plaintiff had suffered non-material damage resulting from that infringement, and that there was a causal link between the damage and the infringement.

Emotional experience

Kaminski was employed by Ballymaguire Foods. During a training exercise to highlight poor work practices in the organisation, CCTV was shown to a group of employees.

The plaintiff, who was identifiable in that footage, alleged that the processing and use of the CCTV footage amounted to unlawful processing of his data in breach of the Data Protection Act 2018 and the GDPR.

The claimant alleged that he suffered anxiety, embarrassment and sleep disturbance.

The court accepted that Kaminski’s loss went beyond “mere upset” and created an emotional experience and negative emotions of insecurity that did affect him for a short period of time.

The judge added that, while this was not backed up by a medical report, the court viewed the plaintiff as “a truthful and conscientious witness”, who did not exaggerate the effect of the data breach on him.

He also praised the company for later addressing the issues in relation to its data policies, and the use of CCTV for training in the workplace.

Damages ‘generally modest’

According to Fieldfisher, the court considered that the following factors were relevant in assessing compensation for non-material loss:

• If the damage is non-material, it must be genuine and not speculative,
• Damages must be proved. This can be done by way of oral evidence, but supporting evidence (such as a medical report) is considered strongly desirable but not essential,
• An apology may be relevant in consideration of the mitigation of damages, and
• Damages will generally be modest in case of this nature.

The Fieldfisher lawyers note that the decision does not make any reference to costs being awarded to either party.

“The issue of costs will need to be determined by the court, and will strongly influence the extent to which lawyers find it commercially attractive to prosecute claims of this nature,” they conclude.