Someone gets an advertising mail, although he had clearly rejected advertising mails. Now he wants to be compensated for this compensation. Does he have a chance?

An oversight can happen quickly

Entering advertising bans in an address database is a tedious job. It’s easy to make a mistake. And already an advertising mail is sent, although the addressee explicitly does not want to receive any advertising mails.

Some want to see money for it

Surely a friendly apology should be enough? Some people accept it and everything is fine. However, there are also affected persons who demand compensation. Often, the demands range from 100 € to 300 €. Mind you, because of a single e-mail. Before the General Data Protection Regulation (GDPR) existed, any court would have shaken its head at such an idea.

Of course there is a right to injunctive relief

Even then, the courts granted a right to injunctive relief. It is still the same today. So you have to promise in a „cease and desist“ declaration that something like this will not happen again. This declaration must be combined with the „promise of a contractual penalty“. If an e-mail is sent again, the promise to cease and desist is broken. This in turn triggers a contractual penalty. Before that, it is not an issue.

Compensation for damages did not exist in the past

In the past, the courts did not award damages because of the one e-mail that had already been sent. The typical argument was that there was no damage that could be quantified financially. And the courts did not see any reason for something like compensation for pain and suffering because of such a trivial matter.

The GDPR has changed that

The GDPR has changed that. Article 82 contains a provision on the „right to compensation“. Accordingly, damages are always available if damage has been caused „due to a breach of this Regulation“. This damage can be explicitly material or immaterial. Material means that it must be quantified financially. Immaterial is a damage if it cannot be measured in money, but still „hurts“.

A „bad feeling“ can be an immaterial damage

A typical example of immaterial damage is pain. Pain will hardly ever be caused by an unauthorized advertising e-mail. However, it may cause a certain degree of annoyance. It can also cause uncertainty as to whether the e-mail address has been passed on somewhere else.

A district court granted 300 € for this

In fact, a district court took the following view: „The damage may already lie in the uneasy feeling that personal data has become known to unauthorized persons.“ That was reason enough for the court to award 300 € in damages.

Pay close attention to all your employer’s specifications!

It is therefore essential for everyone to observe the specifications that exist in the company for dealing with mail addresses. Otherwise it can quickly become expensive.