Compensation for Breach of a Subject’s Rights under the Data Protection Act 2018

An individual’s right to claim compensation following a breach of the General Data Protection Regulation (GDPR) is given effect in section 168 of the Data Protection Act 2018 (DPA 2018). An equivalent right is provided in section 169 for an infringement of the DPA 2018 which is not a contravention of the GDPR. Although the DPA 2018 does not assist with determining the amount of compensation, case law decided under its predecessor, the Data Protection Act 1998, continues to provide guidance.

Overlap with other types of claim

Unsurprisingly, claims under the 1998 and 2018 Acts frequently overlap with claims for misuse of private information, negligence, and contravention of the right to privacy under Article 8 of the European Convention on Human Rights. If multiple causes of action succeed, the usual approach is not to distinguish between them when awarding damages (Crook v Chief Constable of Essex Police [2015] EWHC 988 (QB)). Claims are unlikely to succeed if the damages claimed under data protection legislation cannot be treated as arising separately from damages already compensated via an alternative cause of action (Crook v Chief Constable of Essex Police [2015] EWHC 988 (QB)).

Damages for distress

It is well-established that damages under the 1998 and 2018 Acts may include full compensation for monetary loss and personal injury, including causation of mental illness. But what about distress caused by infringements of data privacy? The early case of Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB) signalled that damages awarded for distress following a data privacy infringement would be limited. The defendant newspaper had published photographs of the claimant leaving a Narcotics Anonymous meeting along with an article containing details of her drug addiction and ongoing therapy. The High Court found that there had been a breach of the 1998 Act and awarded damages of £2,500.

By contrast, the High Court recently awarded £18,000 each for distress caused to two claimants whose data had been inaccurately featured in the infamous ‘Steele Dossier’ which alleged links between Vladimir Putin and Donald Trump (Aven and others v Orbis Business Intelligence Ltd [2020] EWHC 1812 (QB)).

The leading case in this area is now TLT v Secretary of State for the Home Department [2016] EWHC 2217 (QB). At least two developments can be identified from this case. First, there is a threshold of distress below which damages in respect of distress alone may not be awarded. The court did not specify where this threshold lies, apart from to say the de minimisprinciple applies. Second, there is no reason why compensation for distress alone cannot run into many thousands of pounds.

In Woolley and Woolley v Akbar [2017] SC Edin 7, the Sheriff Court awarded each of the claimants £8,634 after their neighbour installed CCTV cameras and audio recording equipment directed at their property. The defendant did not dispute the claimants’ calculation of damages for distress, namely £10 per day the equipment was operational. In the absence of a dispute, the Sheriff merely commented that the calculation seemed logical and easily applicable.

Damages for mere breach

A breach of the DPA 2018 has generally been regarded as not actionable per se. A notable case in this area is Lloyd v Google Inc [2018] EWHC 2599 (QB), which concerned the defendant’s unlawful placement of tracking software on a large number of iPhones. At first instance, it was held that the infringement itself could not constitute damage. That decision was overturned by the Court of Appeal in Lloyd v Google Inc [2019] EWCA Civ 1599, but the defendant has now appealed to the Supreme Court.


The outcome of the case law is that damages for a breach of the Data Protection Act 2018 will be unpredictable and highly fact-specific. Currently, damages can be claimed for material and non-material loss, including distress. However, the Supreme Court’s decision in Lloyd in early 2021 could have far-reaching consequences for potential claimants under the DPA 2018 who have suffered no loss at all.

If you have been affected by a breach of your subject rights under the Data Protection Act 2018, Data Protection Act 1998 or the General Data Protection Regulations, do not hesitate to contact a member of our Civil Litigation team to find out what rights to compensation you may have.

The Impact of Brexit on the UK Immigration Rules

Taking a stronger hold on immigration policies and borders isn’t a new agenda for the government. The Secretary of State for the Home Department, Priti Patel’s post-Brexit plan from January 1st 2021 for immigration undeniably proves this with a planned ‘points-based system’ with an aim to reduce the number of immigrants coming into the UK. But what will this mean for workers?

The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 received Royal Assent on 11 November 2020  and freedom of movement will be replaced with a points-based system to allocate points to workers aspiring to earn a living in the UK based on skills, level of education and their standard of English, to give some examples. The higher the score, the better for those wishing to reside here. This system has various purposes, but Priti Patel has made great emphasis on the need to reduce the number of economically inactive people aged 16-64 in the economy, which is estimated at 8.6 million as of November. However, not all will fit into one category as to why people are unemployed. There are a variety of reasons and it could be that they are full-time students, retired or carers rendering them incapable of having a full-time job. The Office for National Statistics reinforces this as the majority of the 8 million have viable and valid reasons for being out of work such as illness and carer duties as mentioned above. So, will this policy aiming to select workers from the existing pool truly boost the employment rate and the economy from January and is there any vulnerability to job loss risks which existing EU national workers could face?

This policy will affect many job sectors including the healthcare sector. The health correspondent for the BBC, Nick Triggle has explained that foreign nationals currently make up a sixth of the 840,000 care workers in England alone. But as these workers are considered ‘low-skilled’, could this new policy effectively push them out? It seems that thousands of workers will not meet the threshold put in place by the government and Home Office as many do not have or hold A-Level qualifications or earn a high enough salary. On the contrary, the BBC highlighted earlier this year that the definition of ‘skilled worker’ would broaden to not only include graduates but also A-Level qualification, Scottish Highers and technical equivalents. But will a broadened definition of ‘skilled workers’ relax the system for EU nationals in certain sectors? In more labour orientated jobs such as the building sector, many of the workers come from other EU countries and have learnt their skills required for their work practically as opposed to solely education. This implies that they may not have the necessary A Level or equivalent qualification the government is expecting, despite these workers exceling in their respective field. The figures which state that EU nationals make up roughly 28% of construction workers in London strongly suggest that many workers of this industry could be at risk because of the points system as they may be unable to get visas. But this is not unique to the constructive sector as many fields will experience this same vulnerability.

As well as mere risk, the government have stated that EU migrants who lose their job will have to return to their home country, unless they have indefinite leave to remain. This confirms that visas will not be given to many workers already working in the UK unless they meet the said conditions.

It is clear this post-Brexit immigration plan will affect many workers as freedom of movement comes to a close for the UK. EU nationals who wish to come to the UK will almost certainly struggle much more than under the existing immigration rules. The lingering question is how much strain will it put and how much will it benefit the struggling economy?

Many individuals in positions of hospitality, the labour market, seasonal work and plenty more may be unable to change their situation and be worried for their future as ‘low-skilled’ or ‘economically inactive’. If you are in a similar position and are concerned for the assessment of your economic activity, please contact us for a consultation and speak to a member of our award winning Black Antelope Law Immigration Team.

Simao Paxi-Cato appointed Griffin Access Programme Facilitator

Black Antelope Law is pleased to announce that our Simao Paxi-Cato has been appointed as Programme Facilitator for the Honourable Society of Gray’s Inn Griffin Access Programme.

The Griffin Access Programme (GAP) is a student development and careers advice programme for Year 12 and Year 13 students.

The overarching aim of the programme is to de-mystify careers at the Bar by providing an opportunity to meet and work with the members of the Inn and to provide practical advice to plot a route to the Bar for committed students. The Griffin Access Programme will differ from other schools’ outreach programmes run by the Inn in terms of the duration and contact students will have with the Inn’s members.

The Programme will be driven by the Barristers of the Inn (Programme Facilitators) and will act as a gateway to the career services of the Inn.

Simao is very excited to be part of this new initiative and considers that his role is an opportunity to further Black Antelope Law’s commitment to positive action in the legal profession and achieving a more representative profession.