The Court of Justice of the European Union (CJEU) recently clarified some fundamental questions regarding the right to compensation under Article 82 of the General Data Protection Regulation (GDPR). The CJEU emphasised the cumulative conditions for the right to compensation, namely, damage resulting from a data breach and a causal link between the two. There are a number of ways in which the GDPR provides a more detailed framework for what should typically constitute damage, how the control of personal data can facilitate the assessment of the concept of damage and how the burden of proof can be interpreted in the light of the purpose of the Regulation. There is no automatic right to compensation and a more detailed assessment must be made under all of the criteria set out in Article 82. In the absence of further case law, I have tried to clarify the applicable law by interpreting the GDPR and the two judgements from the CJEU on the right to compensation. From a procedural point of view, a future with more litigation in the form of representative actions as a result of the Representative Action Directive is likely. The Directive does not change the Swedish representative action rules in any major way, but what is worth noting are the differences between opt-in and opt-out. An opt-in system, such as the Swedish one, may see some increase in the number of representative actions, but in an opt-out system, like the one in the Netherlands, it is likely to see many more representative actions. Uncertainties remain as to whether the opt-out system is compatible with the GDPR, and the CJEU will have to clarify the legal status in the near future. When evaluating the consequences of the legal developments, a potential over- regulation is a risk, while information security is likely to improve. As I see it, the CJEU has two choices to counteract any over-regulation that may arise as a result of legal developments. Either the CJEU can clarify that Article 80 of the GDPR does not allow for an opt-out system, or the CJEU can clarify where the upper limit of the amount of damages in representative actions lies, for example through the principle of proportionality.
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:uu-520114 |
| Date | January 2023 |
| Creators | Persson, Enar |
| Publisher | Uppsala universitet, Juridiska institutionen |
| Source Sets | DiVA Archive at Upsalla University |
| Language | Swedish |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
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