GDPR and Compensation for Pain and Suffering: Federal Court of Justice (BGH) Rejects Claim Based on Unsolicited Marketing Email

The Federal Court of Justice (BGH) decided on 28.01.2025 that the mere receipt of an unsolicited marketing email without concrete impairment does not give rise to a claim for non-pecuniary damages under Art. 82 GDPR. Despite the GDPR breach, the claimant failed to adequately demonstrate that he had actually suffered any damage.

For which breach was compensation under the GDPR claimed?

The Federal Court of Justice (BGH) had to decide whether the receipt of a single unsolicited marketing email could trigger a claim for non-pecuniary damages under Art. 82 GDPR. The proceeding originated from an email that the defendant, a merchant, had sent to the claimant in March 2020 during the Corona pandemic without his consent. The claimant, who had purchased door stickers bearing the inscription "Betteln und Hausieren verboten" from the defendant in 2019, explicitly objected to the use of his data for advertising purposes and, in addition to an injunction, sought "pain and suffering" compensation in the amount of €500.

While the defendant acknowledged the claim for an injunction, the dispute over compensation remained. The Local Court (AG) and the Court of Appeal had rejected the application for payment. The claimant pursued this further by appeal to the Federal Court of Justice (BGH).

The Federal Court of Justice (BGH) upheld the decisions of the lower courts: although the court found a breach of the GDPR, as the defendant had processed the claimant's email address without a legal basis, such a breach alone was not sufficient to establish a claim for damages. Under Art. 82 GDPR, the occurrence of concrete damage is required – whether material or non-material.

The claimant could neither prove actual loss of control over his data nor was his mere concern about possible misuse sufficient. The court emphasised that, although even a temporary loss of control could theoretically constitute damage, this must be concretely demonstrated. The generic allegation of a "bad feeling" and the effort involved in dealing with the incident were insufficient. The Federal Court of Justice (BGH) did not regard the defendant's failure to respond to the objection as damage, but at most as an aggravating circumstance, not as a substantiating one.

Important: The Federal Court of Justice (BGH) clearly rejected the view, previously upheld in some parts of case law, that a "de minimis threshold" must be exceeded in order to trigger a claim for damages. According to the case law of the Court of Justice of the European Union (EuGH), what matters is not the materiality of the damage – but rather that damage is substantiated at all.

Conclusion and Implications for Legal Practice

The judgment strengthens legal certainty in asserting non-pecuniary damages under the GDPR. The Federal Court of Justice (BGH) follows the line of the Court of Justice of the European Union (EuGH), according to which no materiality threshold exists for non-pecuniary damages. Nevertheless, the judgment underscores that the claimant's burden of proof remains decisive.

For those affected, this means that in cases of data protection breaches they must do more than merely document the breach – they must concretely and comprehensibly describe how this breach negatively affected them. A mere sense of unease, general uncertainty, or the effort of answering a marketing email are insufficient to justify claims for compensation.

For enterprises, on the other hand, the judgment creates a degree of legal certainty: not every unlawful processing of personal data automatically triggers a claim for damages. A differentiated approach remains applicable, in which even minor breaches do not incur liability for damages provided no concrete damage is demonstrated.

It is to be hoped that the judgment will have a disciplinary effect on data protection litigation and prevent an inflationary expansion of claims for pain and suffering in cases of minor breaches. It demands a serious engagement with the actual impact of data protection violations – on the part of both the courts and those affected.

AVANTCORE Solicitors – with direct marketing and data protection law we are experts!

At our law firm in the heart of Stuttgart, several solicitors and specialist solicitors are available to you, who have many years of expertise in the fields of IT law, competition law and data protection law. In the event of a conflict, whether with authorities, with your competitors, or with data subjects who assert claims against you under data protection law, we will also stand by your side in court.