Higher Regional Court of Hamm (Germany): Claims for Moral Damages Under Art. 82 GDPR are Assignable – German Class Actions Coming?

By Dr. Thomas Nietsch and Andreas Müller

On July 24, 2024, the OLG Hamm ruled that claims for moral damages under Art. 82 GDPR are generally assignable (case number: 11 U 69/23).

An employee of a covid vaccination center had accidentally sent an email to 1,200 recipients for rescheduling appointments, including unencrypted personal (health) data on 13,000 individuals (names, addresses, dates of birth, information on the planned vaccine, email addresses and mobile numbers). 532 of the data subjects sold and assigned their claims to the plaintiff, who asserted claims for moral damages based on these assignments, claiming at least EUR800 per data subject (EUR425,600 in total).

The judges awarded the plaintiff compensation of EUR600 for moral damages suffered by two of the 532 assignors and dismissed the claim for the remainder in its entirety, as the plaintiff failed to demonstrate and prove the existence of actually incurred moral damages for the remaining assignors.

In addition to the general question on substantiation of incurred damages, a key question was the assignability of such claims under Art. 82 GDPR. The court confirmed that the assignability of the claims was not outweighed by the personal nature of the damage claims which could lead to prohibition of assignment under German law. This question had not been previously decided, which had created uncertainty for entities claiming damages for large groups of individuals.

Although the court dismissed most of the claims due to lack of merits, confirming the assignability of claims significantly increases the risk for data controllers of being exposed to lawsuits for high damages in the event of a data breach.