October has already been a busy month for the Court of Justice of the European Union (“CJEU”), which has published a number of judgments on the interpretation and application of the GDPR, including five important decisions, all issued by the CJEU on one day – 4 October 2024. 

This article provides an overview and summary of several of the key data protection judgments issued by the CJEU this month. The judgments consider issues including: whether legitimate interests can cover purely commercial interests;  whether competitors are entitled to bring an injunction claim based on an infringement of the GDPR; what constitutes ‘health data’ within the meaning of Art. 4 and Art. 9 of the GDPR, whether a controller can rely on an opinion of the national supervisory authority to be exempt from liability under Art. 82(2) GDPR; and what constitutes sufficient compensation for non-material damages and many more. 

Following preliminary questions from the Amsterdam district court, the CJEU has provided valuable clarification in relation to whether “legitimate interests” under Art. 6 (1)(f) GDPR can be “purely commercial”. In its judgement, the CJEU recognized that a wide range of interests can be considered a ‘legitimate interest’ under the GDPR and there is no requirement that the interests of the controller are laid down by law. While the CJEU decided not to answer the specific preliminary questions received from the Amsterdam district court, the attitude of the CJEU is clear: “legitimate interests” can serve purely commercial interests.  

For further information on this decision, please see our blog post available here.  

In its judgement, the CJEU ruled that Chapter VIII of the GDPR allows for national rules which grant undertakings the right to take action in case of an infringement of substantive provisions of the GDPR allegedly committed by a competitor. Such an action would be on the basis of the prohibition of acts considered to be unfair competition. The CJEU further ruled, that the data of a pharmacist’s customers, which are provided when ordering pharmacy-only but non-prescription medicines on an online sales platform, constitute “health data” within the meaning of Art. 4 (15) and Art. 9 GDPR (to that extent contrary to the Advocate General’s opinion of 25 April 2024). 

For further information on this decision, please see our blog post available here.  

  • Maximilian Schrems v Meta Platforms Ireland Ltd (C-446/21) 

Background 

The privacy activist, Maximilian Schrems, brought an action before the Austrian courts challenging the processing of his personal data by Meta Platforms Ireland (“Meta”) in the context of the online social network Facebook. Mr Schrems argued that personal data relating to his sexuality had been processed unlawfully by Meta to send him personalised advertisements.   

Mr Schrems alleged that this processing took place without his consent or other lawful means under the GDPR. The CJEU noted that Mr Schrems had not posted sensitive data on his Facebook profile and further did not consent to Meta using a wider pool of personal data received from advertisers and other partners concerning Mr Schrems’ activities outside Facebook for the purpose of providing personalised advertising.  

The personalised advertisements in question were not based directly on his sexual orientation but on an analysis of his particular interests, drawn from a wider pool of data processed by Meta, as nothing had been openly published by Mr Schrems via Facebook about his sexuality. 

Key findings 

In its judgment, CJEU held that Art. 5(1)(c) GDPR does not allow the controller, in particular a social network platform, to process data collected inside and outside the platform for the purpose of personalised advertising for unlimited time and without distinction as to type of data. 

The CJEU emphasised that the principle of data minimisation requires the controller to limit the retention period of personal data to what is strictly necessary in the light of the objective of the processing activity. 

Regarding the collection, aggregation and processing of personal data for the purposes of targeted advertising, without distinction as to the type of those data, the CJEU held that a controller may not collect personal data in a generalised and indiscriminate manner and must refrain from collecting data which are not strictly necessary for the processing purpose. 

The CJEU also held that the fact that an individual manifestly made public information concerning their sexual orientation does not mean that the individual consented to processing of other data relating to their sexual orientation by the operator of an online social network platform within the meaning of Art. 9(2)(a) GDPR. 

Background 

The data subject is a shareholder of a company in Bulgaria. The company’s constitutive instrument was sent to the Registration Agency (Agentsia po vpisvaniyata), the Bulgarian authority managing the commercial register. 

This instrument, which includes the surname, first name, identification number, identity card number, date and place of issue of that card, as well as the data subject’s address and signature, was made available to the public by the Agency as submitted. The data subject requested the Agency to erase the personal data relating to her contained in that constitutive instrument. As it is a legal requirement to publish certain information relating to the company’s constitutive instrument in the commercial register under Directive 2017/1132 (relating to certain aspects of company law), the Agency refused to delete it when requested by the data subject. The Agency also did not want to delete the personal data that is not required under the Directive but was nevertheless published as it was contained in the instrument. The data subject brought an action before the Administrative Court of Dobrich (Administrativen sad Dobrich) seeking annulment of the Agency’s decision and an order that the Agency compensates her for the alleged non-material damage she suffered.  

 Key findings 

Of the in total eight questions asked by the national court, the CJEU answered six, of which five related directly to the GDPR. Firstly, the CJEU held that an operator of a public register, which receives personal data as part of the constitutive instrument that is subject to compulsory disclosure under EU law, is both a ‘recipient’ of the personal data insofar the operator makes it available to the public, and also a ‘controller’, even if the instrument contains personal data that is not required based on EU or member state laws for the operator to process. This does not change even if the Agency receives additional information because the data subject did not redact their personal data when sharing the constitutive instrument when they should have according to the operator’s procedural rules. 

Secondly, the controller managing the national register may not outrightly refuse any request of erasure of personal data published in the register using the argument that the data subject should have provided a redacted copy of the constitutive instrument. A data subject enjoys a right to object to processing and a right to erasure, unless there are overriding legitimate grounds (which is not the case here).  

Thirdly, the CJEU confirmed that a handwritten signature of a natural person is considered personal data as it is usually used to identify a person and has evidential value regarding the accuracy and sincerity of a document.  

Fourthly, the CJEU held that Art. 82(1) GDPR must be interpreted as meaning that a loss of control for a limited period by the data subject over their personal data, due to the making available to the public of such data online in the commercial register of a Member State, may be sufficient to cause ‘non-material damage’. What in any case is required, is that the person demonstrates that they actually suffered such damage, however minimal. The concept of ‘non-material damage’ does not require the demonstration of the existence of additional tangible negative adverse consequences.  

Lastly, if the supervisory authority of a member state issues an opinion on the basis of Art. 58(3)(b) GDPR, the controller is not exempt from liability under Art. 82(2) GDPR if it acts in line with that opinion. The Agency namely argued that a company’s constitutive instrument may still be entered into the register even if personal data is not redacted and referred hereby to an opinion of the Bulgarian supervisory authority. However, as such an opinion issued to the controller is not legally binding, it can therefore not demonstrate that damages suffered by the data subject are not attributable to the controller which means that it is insufficient to exempt the controller from liability.  

  • Patērētāju tiesību aizsardzības centrs (Latvia Consumer Rights Protection Centre) (C-507/23) 

Background 

The data subject is a well-known journalist and expert in the automotive sector in Latvia. During a campaign to make consumers aware of the risks involved in purchasing a second-hand vehicle, the Latvian Consumer Rights Protection Centre (“PTAC”) published a video on several websites which, among other things, featured a character imitating the data subject, without his consent.  

The journalist brought an action before the District Administrative Court in Latvia seeking (i) a finding that the actions of the PTAC, consisting in the use and distribution of his personal data without authorisation, were unlawful, and (ii) compensation for non-material damage in the form of an apology and the payment of EUR 2,000. The court ruled that the actions in question were unlawful, ordered the PTAC to end to acts, to make a public apology to the journalist and to pay him EUR 100 in compensation in respect of the non-material damage he had suffered. However, on appeal, although the Regional Administrative Court confirmed that the processing of personal data by the PTAC was unlawful and ordered the processing to cease and the publication of an apology on the websites which had disseminated the video footage, it dismissed the claim for financial compensation for the non-material damage suffered. The court found that the infringement that had been committed was not serious on the ground that the video footage was intended to perform a task in the public interest and not to harm the data subject’s reputation, honour and dignity.  

The journalist appealed this decision, and the Latvian Supreme Court referred a number of questions on the interpretation of Art 82(1) GDPR to the CJEU 

 Key findings 

Firstly, the CJEU found that an infringement of a provision of the GDPR, including the unlawful processing of personal data, is not sufficient, in itself, to constitute ‘damage’ within the meaning of Art. 82(1) GDPR.  

By this, the CJEU repeats and emphasises its previous interpretations of Art. 82(1) GDPR to the effect that a mere infringement of the GDPR is not sufficient to confer a right to compensation, since cumulatively and in addition to an ‘infringement’, the existence of ‘damage’ and of a ‘causal link between damage and infringement constitutes the conditions for the right to compensation in Art. 82(1) GDPR. According to the CJEU, this principle even applies if a provision of the GDPR has been infringed that grants rights to natural persons, as such an infringement cannot, in itself, constitute ‘non-material damage’. In particular, the CJEU held that the occurrence of damage in the context of the unlawful processing of personal data is only a potential and not an automatic consequence of such processing. 

Secondly, the CJEU found the presentation of an apology may constitute sufficient compensation for non-material damage on the basis of Art 82(1) GDPR. This applies in particular where it is impossible to restore the situation that existed prior to the occurrence of that damage, provided that that form of redress is capable of fully compensating for the damage suffered by the data subject. 

According to the CJEU, Art. 82(1) GDPR does not preclude the making of an apology from being able to constitute standalone or supplementary compensation for non-material damage provided that such a form of compensation complies with those principles of equivalence and effectiveness. In the present case, providing an apology as a possible compensation was explicitly laid down in Art. 14 of the Latvian Law on compensation for damage caused by public authorities. Other jurisdictions, however, such as German civil law, do not explicitly provide in their national laws the possibility of an apology as a form of compensation. Nevertheless, some courts have already taken apologies into account when determining the amount of monetary compensation. In light of this decision, courts may therefore consider an apology even more as a means of reducing the monetary amount of compensation for damages.  

Thirdly, according to the CJEU, Art. 82(1) GDPR precludes the controller’s attitude and motivation from being taken into account when deciding whether to grant the data subject less compensation than the damage actually suffered.  

According to the CJEU, Art. 82(1) GDPR has an exclusively compensatory and not a punitive function. Therefore, the gravity of an infringement cannot influence the amount of damages awarded under Art. 82(1) GDPR. The amount of damages may not be set at a level that exceeds full compensation for the actually suffered damage. 

Conclusion/implications 

While these five judgements were published on the same day, the decisions relate to a number of different topics. What they do have in common is that they all demonstrate the CJEU’s willingness to impose its reach and tackle difficult questions on the interpretation of the GDPR, particularly where there has not always been agreement or clarity among supervisory authorities. Although these decisions generally clarify and strengthen the CJEU’s previous interpretation of a number of issues, such as those relating to the compensation of non-material damages pursuant Art. 82(1) GDPR, it is interesting that for both the KLNTB decision and the Agentsia po vpisvaniyata decision, the CJEU followed a different interpretation of the GDPR to that of the relevant supervisory authorities (and in the KLNTB decision, contrary to the AG Opinion).

As we start to head into 2025, we can expect continued judgments from the CJEU on the interpretation and application of the GDPR with more than 20 pending cases with the CJEU relating to the GDPR.