Between Data Protection and AI: Civil Liability for Non-Material Damage in Article 82 GDPR

Article 82(1) of the General Data Protection Regulation establishes the right of a data subject to receive compensation for non-material damage suffered due to an infringement of the Regulation. The Court of Justice of the European Union has provided guidance on the interpretation of this Article in recent months. It has set out the requirements for giving rise to a claim and ruled on the function of compensation, the concept of non-material damage, the liability regime, the burden of proof and the determination of the amount of compensation. After providing an overview of these legal elements relevant to tort law, this paper shows what we can learn from the developments in the context of artificial intelligence systems processing personal data. It concludes that the differentiation of individual processing phases in complex processing of personal data enables a claim under Article 82(1) of the General Data Protection Regulation in the event of non-material damage suffered, such as in the SCHUFA compensation cases.