A FACTORY SUPERVISOR, who claimed he had been mocked by colleagues after his employer used CCTV images of him in a training video, has been awarded compensation for non-material damage of upset and embarrassment.
It’s the first such compensation decree by a court in the State for infringement of his personal data rights.
Judge John O’Connor handed down the history-making decision in a claim by Arkadiusz Kaminski, Ridgewood Green, Swords, Co Dublin, against Ballymaguire Foods Limited of Rathmooney in nearby Lusk, Co Dublin.
Kaminski told the Circuit Civil Court that after he had been recognised on the instruction video he had been approached by a number of employees informing him that that he had been captured on CCTV “doing something he should not have been doing.”
He told his counsel Claire Hogan, who appeared with McGuigan Solicitors, Cavan and Dublin, that work colleagues who had recognised him on the training video had used this as a source of mockery, causing him upset, anxiety and embarrassment.
Kaminski had informed McGuigan solicitors Tracey Brady and Richard Crowley, who led investigations into his complaints, that he had been highly distressed because he felt his authority had been undermined, distress that had been exacerbated by the fact that CCTV footage remained freely accessible on Ballymaguire Foods’ computer.
His proceedings had been brought under the Data Protection Act 2018 alleging a breach of the provisions of the Act or the General Data Protection Regulation (GDPR) and seeking compensation for non-material damage.
Ballymaguire Foods, represented by barrister Eoin Coffee and BHSM Solicitors, had claimed Kaminski was not entitled to recover damages because the non-material damage amounted to no more than “mere upset, anxiety and embarrassment” for which damages were irrecoverable.
Judge O’Connor, in a detailed written judgment which may now assist in the court generally dealing with any future Circuit Court proceedings, said he had to decide if the CCTV, in a demonstration of work practice, breached Kaminski’s personal data in that it constituted an unlawful processing of data.
If his answer was yes, then did the non-material damage go beyond mere upset or displeasure and, if so, what if any compensation was recoverable and how was it to be calculated.
He said it was accepted by both parties that Kaminski was identifiable and the court was satisfied there was an infringement of his rights under the GDPR; there was non-material damage arising from that and there was a causal link between the damage and the infringement.
“The damage in this case resulted in some slagging by employees culminating in some serious embarrassment and sleep loss,” Judge O’Connor said.
“The plaintiff was not at the training meeting of supervisors and managers and did not know (until later) his image would be used”.
Judge O’Connor said the CCTV had been stored on a communal work computer, without password protection, and although creating a serious risk was not accessed by unauthorised persons.
“The court accepts Kaminski’s loss went beyond mere upset and created an emotional experience and negative emotions of insecurity which did affect him for a short time,” the judge said.
“While not backed up by a medical report…the plaintiff was viewed by the court as a truthful and conscientious witness who did not exaggerate the effect of the data breach on him.”
Judge O’Connor said it was admirable that Ballymaguire Foods had addressed the issues in relation to the data policies and the use of CCTV for training in the workplace.
The data breach had not had any long-term effect on Kaminski.
He said the appropriate award for non-material damages in his case was €2,000, with an order for all of the legal costs involved in the case.
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