Vienna Higher Regional Court decides on Schrems v. Facebook

Published 15/01/2021

On 7 December 2020, the Vienna Higher Regional Court (OLG) ruled (11 R 153/20f, 154/20b) in the legal dispute between Max Schrems and Facebook, which has been ongoing for several years. Two findings from the judgement are worth highlighting:

1. The Vienna Higher Regional Court awarded the claimant Max Schrems non-material damages of EUR 500 for the inconvenience suffered due to Facebook’s violation of his right of access under Article 15 of the GDPR. The court thus joins the ranks of those courts (see NewsMonitor Episode 1) that award non-material damages for violations of rights under the GDPR without proof of specific, demonstrable damage.        

In practice, the ruling could encourage claimants to claim damages for violations of the GDPR, e.g. in the case of refused, incomplete, or delayed information, especially since the court already considers a slight degree of discomfort to be sufficient. In the case of more significant data protection violations, significantly higher claims for damages would thus have to be expected.

2. However, the ruling also raises eyebrows in another respect: According to the court, consent, as claimed by the claimant, was not even necessary for data processing. Facebook owed a “personalised experience” on the basis of its terms of use and could therefore rely on the “performance of contract” under Art. 6(b) GDPR as a legal basis.

However, until the issue has been clarified by the Austrian Supreme Court, companies should not trust that they can use the contract with their customers to arbitrarily expand data processing for personalised advertising, etc. Even if in many cases supervisory authorities and courts of a more liberal disposition in data protection matters would be desirable for Austria and the EU as a business location, this time the Vienna Higher Regional Court has probably overstretched the “interpretation bow” regarding the GDPR. In view of the rather restrictive decision-making practice and opinion of the European supervisory authorities, it is likely that the Vienna Higher Regional Court ruling will be corrected by the Supreme Court on appeal.