Sunday, 25 of November of 2018

The Spanish Supreme Court has recently declared that, given the circumstance of the particular case, an award of damages of 1,000 euros, for the violation of the right to honour of a person whose personal data were undully included in a debtors’ list, is adequate

The First Instance Court had recognized the plaintiff (a retired person) a damages award of € 4,000 for the violation of his right to honour by a financial institution who had included his data improperly (the debt was not due and its payment had not been requested by reliable means) in a debtors’ list.

The Appeal Court ("AC") reduced the compensation to the amount of € 1,000 in view of the (reduced) relevance of the dissemination of the data (they had not been consulted) and other concurrent factors such as the (reduced) amount of the loan as granted (€ 440).

In its Judgment of 6 November 2018, the Civil Chamber of the Supreme Court ("SC") basically intends to verify whether the quantum of compensation conceded by the AC (€ 1,000) is in line with the doctrine (supported, among others, by their Judgment 388/2018 of 21 June) that prohibits symbolic compensations when constitutional rights are involved because, among other reasons, they have a reverse dissuasive effect (they dissuade the affected person instead of the non-complying company).

In the opinion of the SC, the amount of € 1,000 cannot be considered symbolic, given the specific circumstances of the case. Without prejudice to the validity of a iuris et de iure presumption consisting in that any interference in the right to honour generates damages, the figure as granted by the AC must be considered proportionate in light of the following particularities:

(i) The consultation of the data was not proved;
(ii) There is no evidence that the inclusion of the data has prevented the claimant from accessing to other consumer goods;
(iii) The profile of the affected person (retired without professional / business activity that could be affected);
(iv) The damages amount is not symbolic because it exceeds the benefit obtained by the defendant with the financing operation;
(v) The amount of compensation is not dissuasive for the plaintiff as he is a beneficiary of legal aid.