5 July 2016

Compensation for wrongful publication of conviction  

Recently, the Eastern High Court ruled in a case where the housing association AAB had published information on a former voluntary cashier's criminal offences, including his name, on the Internet contrary to the Personal Data Act.

In February 2012, the plaintiff was convicted of criminal breach of trust as he had paid his private expenses for workmen using AAB's funds while acting as voluntary cashier with AAB. The plaintiff found it unnecessary to inform his employer that he had been convicted of criminal breach of trust. In April 2012, it appeared in a newsletter from AAB that the plaintiff had been convicted of criminal breach of trust, and AAB also published the plaintiff's name.

In May 2012, the plaintiff got promoted and once again, he did not inform his employer about the conviction. Shortly after, the employer became aware of the criminal offence as a customer recommenced that the employer looked up the plaintiff's name on the Internet.

The same day that the employer became aware of the criminal offence, the employer suspended the plaintiff with immediate effect referring to the fact that the employer had just been informed that the plaintiff had been convicted of criminal breach of trust. The plaintiff got the opportunity to terminate his employment or be dismissed summarily - the plaintiff chose to terminate the employment.

The Danish Data Protection Agency: Gross violation of the Personal Data Act

The plaintiff contacted AAB and requested that the association deleted his personal data, but AAB did not comply with his request. The plaintiff then filed a complaint with the Data Protection Agency. The Agency found that AAB had grossly violated the Personal Data Act and ordered AAB to delete the information.

After the effective date of termination and until the information was deleted in March 2013, the plaintiff once against tried to obtain a new job, however, unsuccessfully, and according to the plaintiff, this was due to the fact that the information was still available on the Internet. The plaintiff then brought legal action against AAB claiming compensation for loss of salary etc. and compensation for injury to feelings or reputation under the Liability in Damages Act.

The city court awarded compensation of more than DKK 1 million

The Copenhagen City Court found that AAB's publication of the plaintiff's name and conviction gave rise to liability and awarded compensation to the plaintiff for loss of salary from the effective date of termination and until the information was deleted, which amounted to DKK 999,800 equivalent to seven months' salary, including pension and bonus for 2012. The Copenhagen City Court also found that the plaintiff was entitled to compensation for injury to feelings or reputation of DKK 25,000 for violation of the Personal Data Act.

The Eastern High Court only awarded compensation for injury to feelings or reputation

Contrary to the Copenhagen City Court, the Eastern High Court found that AAB's publication of the plaintiff's name and conviction did not give rise to liability.

The High Court took into account that the publication on the Internet was a  contributory reason for the termination of the plaintiff's employment. However, the High Court found that at the same time, it should be taken into account that the actual publication of the information was not decisive for the termination of the employment, but that the main reason was that the employee had been convicted of a criminal offence.

The plaintiff had therefore not proved that the termination of the employment and the consequent loss of salary was due to the publication of the conviction on the Internet. There were therefore no grounds for awarding compensation for loss of salary etc. However, the High Court did - as the city court - award compensation for injury to feelings or reputation of DKK 25,000 for violation of the Personal Data Act. When fixing compensation, it was taken into account that the information was true and that it was available on the Internet for almost one year notwithstanding that the plaintiff had requested deletion of the information.  

Comments

The ruling is interesting in relation to the fixing of compensation. Only very limited case law is available concerning compensation for violation of the Personal Data Act, including U2011.2343H. In this case, the Supreme Court also awarded compensation for injury to feelings or reputation of DKK 25,000 for violation of the Personal Data Act in connection with wrongful disclosure of information on suspicion of alcohol abuse from a former employer to a  new employer.

Compared to previous case law, there is a trend toward the courts being relatively reluctant when fixing compensation for injury to feelings or reputation in cases concerning violation of the Personal Data Act.

It will be interesting to follow whether there will be a development in the fixing of compensation when the personal data protection regulation comes into force in Denmark in 2018.

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