Right to compensation

Compensation can be claimed for damage caused by failure to comply with the individual rights as noted above and also for damage (and associated distress) caused by any contravention of the DPA. This could include breach of one or more of the Data Protection Principles, for example Principle 7 which covers the requirements of adequate security for information.

If you can show that you have suffered damage (including financial loss or physical injury), or damage and distress as the result of a breach of the DPA AND the data controller is unable to prove that he has taken a reasonable amount of care to comply with the relevant requirement, then you will be entitled to compensation under section 13.

You can only claim damages for distress alone where the breach relates to the processing of personal data for the “special purposes”, namely journalistic, artistic or literary purposes.

All claims for compensation must be made to the Court, unless the matter can be resolved between the parties. This is the case even where the Information Commissioner has made an assessment that it is likely that there has been a breach of the DPA, as the Commissioner has no power to award compensation.

There are no guidelines as to appropriate levels of compensation for a claim under the DPA, although generally awards are fairly low. In Campbell v MGN [2002] Naomi Campbell, who had been photographed by the Mirror whilst attending a clinic was awarded £2,500 for damage and hurt feelings plus £1,000 for aggravated damages for a subsequent offensive article. In November 2003 it was reported that the Chief Constable of Greater Manchester had paid compensation of £2,000 for psychiatric harm to a lady whose details had been accessed by a police officer neighbour. In A v London Borough of Newham it was reported that the Borough paid £5,000 to the parents of a child who was wrongly stigmatised as being HIV positive, the picture of the child having used on the front of a Council publication on HIV and Children. The Borough had continued to use the picture in that way even after the parents had complained.

The Judge hearing the case has discretion in these matters and would have to take into consideration many factors including the seriousness of the breach and the effect upon you, particularly when considering damages for distress.

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