The Cologne Higher Regional Court (OLG), 15 U 3/23, has reached an interesting decision on the unauthorized use of personal data in advertising: According to the OLG, the amount of damages under the GDPR is (also) to be measured according to what is usually paid as a license fee for an advertising use. The OLG explicitly refers to the license analogy that is customary in Germany for the assessment of damages in copyright law – which is also to be applied in data protection law.
Use of name leads to license damages via DSGVO
The OLG states that the use of the name of a real person is a personal data. If such a name is used for advertising purposes – in this case, it was used in an advertising brochure – this constitutes data processing within the meaning of Art. 4 No. 2 DSGVO. This, in turn, requires the consent of the name bearer in order to be lawful pursuant to Article 6 (1) (a) of the Regulation, unless there is an exceptional circumstance such as, in particular, Article 6 (1) (f) of the Regulation. Not surprisingly, the burden of proof for the existence of a corresponding consent lies with the user.
If there is unlawful processing, a claim by the name holder arises on the merits from Art. 82 (1) GDPR. The OLG emphasizes that in the event of an encroachment on the pecuniary elements of the data subject’s general right of personality through their use in a commercial context, the claim for compensation for material damage under Article 82 (1) of the GDPR may also include the fictitious license fee (license analogy), which the OLG justifies as follows:
Recital 146, sentence 6, contains the objective of providing the data subject with full and effective compensation for the damage suffered (see ECJ, judgment of 17.12.2015 – C-407/14 …), which may include, inter alia, lost profits.Recital 146, sentence 6, contains the objective of providing the data subject with full and effective compensation for the damage suffered (see ECJ, judgment of 17.12.2015 – C-407/14 …), which may include, inter alia, lost profits.
In this respect, it seems preferable that the concept of damage in Article 82 (1) of the GDPR, which is to be interpreted autonomously, is open to interpretation and that, in the absence of specific rules in Union law, legal principles of the Member States – and thus in this case the principles of the so-called triple damage calculation – can also be used to calculate the compensable material damage, although the requirements of the principle of equivalence and effectiveness with regard to the maximum amount of liability and any punitive damages must be observed (…).
Oberlandesgericht Köln, 15 U 3/23
License damages for promotional use of name
As a result, this means that not only the “usual compensation” can be considered, but also compensation for lost license fees can be demanded via the GDPR in a roundabout way. For the affected parties, this has the charm that the burden of proof regarding the required consent clearly shifts in the direction of the user. In the present case, an attempt had been made via unjust enrichment (Section 812 of the German Civil Code) and actually failed due to the concrete evidence situation – the shift to the GDPR, however, makes it more “thankful” for the affected party!
In the case of a fictitious license fee that is to be paid as damages pursuant to Art. 82 (1) GDPR, its amount is to be estimated by the judge of fact in accordance with the national procedural law provision of Sec. 287 (2) ZPO. In doing so, in accordance with the conventional principles of license analogy, it is to be asked what reasonable contractual partners would have agreed as remuneration for the acts of use performed by the infringer. In the context of determining the objective value of the right of use, which is decisive for the assessment of the license fee, all relevant circumstances of the individual case must be taken into account and comprehensively assessed. In the context of determining the objective value of the right of use claimed, all relevant circumstances of the individual case must be taken into account and comprehensively assessed. Essential factors in the assessment are the degree of recognition and the sympathy/image value of the person concerned, the attention value, the effect, the degree of dissemination of the advertising and the role assigned to the person concerned in the advertising.
But be careful: An increase of the awarded notional license fee within the framework of Art. 82 (1) GDPR opened here is not justified with regard to the idea of a so-called penalty or infringer’s surcharge (which is quite common in copyright law!). In particular, the purpose of the claim for compensation, at least for the material damage pursuant to Art. 82 (1) GDPR, as evidenced by recital 146, is merely to compensate for the impairment of the affected party’s pecuniary legal positions and not to “punish” the infringer beyond this mere compensation, as the OLG again points out. To apply an increase factor here in copyright law would therefore be a fatal error. In the present case, it remained at 1500 euros (the lower court had still come to almost 6000 euros!).
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