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Compensation for distress under the Data Protection Act 1998

If you have been the victim of a breach of your personal data, the Data Protection Act 1998 (DPA) gives you the right to compensation. 

An individual has always had the right to claim damages for any financial losses caused by a  breach of the Act.  However a the DPA doesn't often lead to a clear or measurable financial loss. The more common effect is for the individual to suffer from distress as a result of the misuse of their personal data

Privacy cases have always attracted significant damages for distress. The leading case of Gulati & Ors v MGN Limited received a great deal of publicity.  In that case the court awarded various celebrities, who were victims of phone hacking, between £72,500 and £260,250 as compensation for the distress they had suffered. 

Claims for distress caused by a breach of the DPA are however treated differently.

Since the landmark case of Google Inc v Vidal-Hall and others [2015] compensation may now be awarded for distress without the need to first prove financial loss..

This decision unlocked the potential for successful  claims for distress. Awards of between £2,500 and £12,500 were awarded to six asylum seekers when their personal data was inadvertently published on the Home office website (TLT v Secretary of State for the Home Department. Reference [2016])

When making an award the court will look at the specific circumstances of the case and take into account various factors, such as the sensitivity of the data disclosed and the nature of the disclosure.

The court used the level of damages awarded in personal injury claims for psychiatric and psychological distress as a guide to the correct level of damages to be awarded to each victim.  They also highlighted the difference between a breach of the DPA and the much more serious, and deliberate, invasion of privacy that led to the phone hacking cases.

In order to be entitled to damages for distress you would need to show that there has been upset and distress caused by the breach.  In the TLT case, the court was prepared to award damages even in cases where the claimant's fears were not rational, damages were awarded for the "immediate shock" of the discovery of the disclosure, and the loss of trust in authorities resulting from the data breach.

If you have been the victim of a breach of your personal data then you should speak to a specialist solicitor to consider whether the distress you have suffered is enough to entitle you to compensation.

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