In his Opinion of 27.04.2023 (C 340/21), the Advocate General of the European Court of Justice (“ECJ”) commented on the interpretation of the civil non-material right to damages pursuant to Article 82 (1) GDPR as well as on the requirements and the duty of disclosure of the technical and organizational measures pursuant to Articles 24, 32 GDPR in the event of a cyber-attack in the context of a reference for a preliminary ruling of Bulgarian origin.
Facts of the case
The Bulgarian authority “National Revenue Agency” (hereinafter referred to as “NAP”) was target of a cyber-attack which led to unauthorized access to NAP’s information system. In the course of this cyber-attack, personal data – mainly tax and social security information – of approximately 4 million Bulgarian citizens (or approximately 6 million citizens in total, including foreign citizens) had been accessed and published on the Internet. Among them is also the plaintiff.
In the proceedings at first instance before the Administrative Court of the City of Sofia (hereinafter referred to as “ASSG”), the plaintiff demanded an amount of approx. 500 EUR on the grounds of a legal infringement arising from Article 82 (1) GDPR. He argued that NAP had failed to ensure its cybersecurity in an appropriate manner. In the opinion of the plaintiff, the failure to apply appropriate technical and organizational measures in accordance with Articles 24, 32 GDPR resulted in a breach of the protection of personal data. The plaintiff expressed his non-material damage suffered in the form of worries, fears and anxieties about possible future misuse of his personal data.
The NAP, as the defendant, considered the claim to be unfounded. The NAP argued that a cyber-attack does not allow per se conclusions to be drawn about a lack of technical and organizational measures. The NAP argued that it had been the victim of a cyber-attack by third parties who were not its employees and could therefore not be (co-)responsible for the damage incurred and therefore is exempted from liability pursuant to Article 82 (3) GDPR.
Decisions of the court of first instance and referral to the ECJ
The ASSG dismissed the claim, taking the view that the dissemination of the data was not attributable to the NAP, that the burden of proof as to whether the measures implemented were appropriate was on the plaintiff, and that non-material damage was not eligible for compensation.
Hearing the case on appeal, the Bulgarian Supreme Administrative Court referred a number of questions to the ECJ with regard to
- the presumption that technical and organisational measures in accordance with Art. 32 GDPR are not sufficient in case a cyber-attack occurs;
- the subject matter and scope of the judicial review re. the appropriateness of technical and organizational measures;
- the controller’s burden of proof that the technical and organisational measures are appropriate;
- the exemption of liability under Art. 82 (3) GDPR in connection with cyber-attacks; and
- the threshold for the non-material damages under Art. 82 (1) GDPR.
Statements of the Advocate General of the ECJ
The core statements of the Advocate General of the ECJ are as follows:
- According to the Advocate General, the occurrence of a “personal data breach” is not sufficient in itself to conclude that the technical and organisational measures implemented by the controller were not “appropriate” to ensure data protection. The assessment of the appropriateness of those measures must be based on a balancing exercise between the interests of the data subject and the economic interests and technological capacity of the controller, in compliance with the general principle of proportionality.
- Further, the Advocate General states that, when verifying whether the measures are appropriate, the national court must carry out a review which extends to a specific analysis of the content of those measures and the manner in which they were applied, as well as of their practical effects.
- The Advocate General states that the burden of proving that the technical and organisational measures are appropriate is on the controller. In accordance with the principle of procedural autonomy, it is for the national legal order of each Member State to determine the admissible methods of proof and their probative value, including the measures of inquiry.
- The fact that the infringement of the GDPR was committed by a third party does not in itself constitute a ground for exempting the controller. In order to be exempted from liability, the controller must demonstrate, to a high standard of proof, that it is not in any way responsible for the event giving rise to the damage. The unlawful processing of personal data has, in fact, the nature of aggravated liability for presumed fault, which gives rise to the possibility for the controller to provide exonerating evidence.
- Finally, according to the Advocate General, detriment consisting in the fear of a potential misuse of one’s personal data in the future, the existence of which the data subject has demonstrated, may constitute non-material damage giving rise to a right to compensation, provided that it is a matter of actual and certain emotional damage and not simply trouble and inconvenience.
Although the opinion of the Advocate General is not binding for the ECJ, it is to be expected that the ECJ will in general adopt the opinion of the Advocate General in its final judgement. In case the ECJ will follow the opinion of the Advocate General, this judgment will have huge impact and relevance for data processing companies. As the numbers of cyber-attacks increase constantly, in general any company can be affected by a cyber-attack. It is therefore of utmost importance to be prepared for such an eventuality and to review and, if necessary, amend the implemented technical and organisational measures in accordance with Art. 32 GDPR. Even though a cyber-attack can probably never be completely prevented, it is highly recommended in the light of the opinion of the Advocate General and the associated burden of proof for the companies concerned, to regularly check the technical and organizational measures as part of internal audits and to ensure sufficient documentation which is appropriate to be used in court. Such audits also need to cover processors and even sub-processors. Furthermore, contracts with processors and sub-processors need to adequately address not just the allocation of responsibility, but also court-proof documentation.