| In its ruling of 28 January 2025 (case no. VI ZR 109/23), the German Federal Court of Justice (BGH) held that receiving a single unsolicited advertising email is typically insufficient to justify a claim for non-material damages under art. 82 and 83 GDPR. In the case at hand, the plaintiff sought €500 in non-material damages. However, the BGH rejected this claim, reasoning that the plaintiff failed to demonstrate actual damage. Although there is no minimum threshold for such damages, the plaintiff would at least have had to prove an actual loss of control over his own personal data or a tangible impairment of his personality rights. A mere ‘feeling of discomfort’, on the other hand, does not meet the required threshold in terms of actual damage. The judgment is a positive step towards greater legal certainty, as it clarifies that not every minor data protection violation necessarily triggers a claim for damages. Instead, a certain threshold in terms of actual damage must be exceeded. The ruling is positive news for businesses relying on email marketing. In this context, it can never be completely ruled out that cases may occur where emails are sent to individuals without valid consent or to recipients who have withdrawn their consent. (Dr. Lukas Mezger, Unverzagt Rechtsanwälte) |