Four key lessons when facing data class actions in Europe

by Hogan Lovells

Could the GDPR give rise to forum shopping and are there any pre-litigation strategies that should be considered? Here, we review four key elements that should be kept in mind in respect of data class actions in the EU.


In the US, many class actions are dismissed for lack of ‘standing’, i.e. because the litigants do not demonstrate that they suffered an ‘injury in fact’ that is concrete and actual or imminent.

Does the US ‘injury in fact’ standard apply for data class actions in Europe?

Under the GDPR, data subjects have the right to recover both material damages and non-material damages (Article 82).

Hence, in the event of liability, all damages which have been caused by the data protection infringement have to be compensated.

This extended liability is remarkably different to the current legal situation under many Member States’ data protection laws.

Quick glance at France: the data class action12 may be used to put an end to an infringement of the provisions governing the protection of personal data.

The law expressly specifies that this class action cannot give rise to compensation in the form of damages.

It is a purely injunctive form of collective redress.

Yet, this position may evolve in the future as a bill is currently being debated and provides for the creation of a compensatory data class action1.

Quick glance at Germany: on 24 February 2016, a new German Act entered into force aimed at strengthening consumers’ data privacy laws2.

Among other things, it adopted the mechanism called “Verbandsklage”.

This is a representative action enabling qualified entities, e.g. consumer protection organisations, to bring an action against companies and individuals violating data privacy laws.

It only enables organisations to claim for cease-and-desist judgments (injunctions).

So, current claims for damages must be brought by individuals.

The existing “Verbandsklage” does not provide for collective compensation, but may be a door- opener for large-scale lawsuits in Germany.

The GDPR does not set forth any criteria for the assessment of the recoverable damage and leaves it to the applicable national laws.

So Member States use their own national standards to determine whether the litigants have ‘standing’ and whether hypothetical, future or even anxiety damage may be compensable for instance.

Article 82 of the GDPR is intended to act as a deterrent, making data protection breaches economically unattractive.

Furthermore, the case-law of the Court of Justice of the European Union concerning non-material damages must be taken into account.

According to the case law, the amount awarded should have a deterrent effect.

This goal can only be achieved if the amount of damages awarded reaches a sufficiently significant level.

Burden of proof

Under the GDPR, the controller is responsible for ensuring and demonstrating that its processing activities are compliant with the provisions set out in the GDPR as well as with the laws of the Member States implementing the said Regulation.

The controller must implement appropriate technical and organisational measures to ensure as well as to be able to demonstrate that processing is performed in compliance with the GDPR (Article 24).

The controller must keep records in writing – including in electronic form – of its processing activities and make the records available to the supervisory authority on demand (Article 30).

The controller must record and document all personal data breaches – comprising the facts relating to the personal data breach, its effects and the remedial action taken.

These records must be disclosed to the supervisory authority on demand (Article 33).

The GDPR imposes a strict liability regime on controllers: from the moment that a violation is recorded, compensation will be automatic.

Data subjects can bring an action without having to prove any fault or negligence on the part of the controller.

The burden of proving that it is not responsible for the event giving rise to the harm (i.e. the processing of personal data is performed in accordance with the GDPR and the national laws implementing the GDPR) falls on the defendant controller (Article 82).

Controllers have to meet the new data protection requirements and must be able to demonstrate that the processing of personal data is performed in accordance with the GDPR and the laws of the Member States.

So it is of critical importance for the controller to keep records of all measures, actions and elements likely to evidence compliance with the GDPR.

Controllers must treat the GDPR’s accountability mechanisms as pre-litigation strategy, designed to create documentation to show that the defendant applied appropriate technical and organisational measures.


The broad territorial application of the GDPR, and the choice of forum it provides to the data subject, could give rise to forum shopping and multi-jurisdictional collective actions, including European and non-European data subjects.

The GDPR applies to:

  • businesses that are established in the EU and process personal data (Article 3(1));
  • businesses that are established outside the EU if they process the personal data of EU residents when offering them goods or services or when monitoring the behaviour of EU residents (to the extent that such behaviour occurs in the EU) (Article 3(2)).

Businesses not currently subject to the Data Protection Directive may become subject to the GDPR if they offer goods or services to EU residents or monitor their behaviour.

Proceedings against a controller or processor may be brought by the data subject before:

  • the courts of the Member State where the controller or processor has an establishment; or
  • the courts of the Member State where the data subject resides (Article 79(2)).

This choice of forum may lead data subjects to bring individual and class actions in a specific Member State to benefit from the differences in the national laws (e.g. ‘injury in fact’ standard, compensatory actions, compensation of material and non- material damages).

Quick glance at Austria: on 1 August 2014, an Austrian law student, Maximilian Schrems, filed a lawsuit against Facebook Ireland Ltd before the Vienna court based on allegations that Facebook’s practices would breach privacy laws in numerous ways.

In order to initiate a so-called “class action”, Max Schrems created a website to invite any person having suffered the same alleged violations of their rights to join the lawsuit.

On 12 September 2016, the Austrian Supreme Court referred two preliminary rulings to the Court of Justice of the European Union.

On 25 January 2018 (case C-498/16), the CJEU found that Article 16(1) of Regulation 44/2001 could not be read as creating forum for claims that are assigned to Mr. Schrems.

The CJEU explains that the exclusion from assigned claims is necessary for the attribution of jurisdiction to be predictable, which is one of the objectives of the Regulation.


The GDPR does not create a pre-litigation discovery process.

Yet, it sets forth some provisions requiring controllers to disclose evidence proving compliance with the GDPR.

This may enable data subjects to build their case before filing a claim.

The GDPR provides data subjects with a comprehensive right to access their own personal data through a subject access request (Article 15).

The controller must respond to the subject access request within one month of receipt of the request

(Article 12) and provide the data subject with a copy of all personal data which the subject has made available to it.

The GDPR expands the mandatory categories of information which must be supplied in connection with a data subject access request (e.g. information about the purposes of the processing, the categories of data being processed, the period for which the data will be stored) (Article 13).

This allows data subjects to be able to verify the lawfulness of the processing of their personal data.

The controller may refuse to respond to a subject access request if it is manifestly unfounded or excessive.

But the controller bears the burden of proving the request is manifestly unfounded or excessive (Article 12).

Companies should be prepared that data subjects will exercise their right to lodge a complaint with a supervisory authority to access the findings of the administrative investigation (Article 77).

It is likely that the data subjects will use this information in the course of civil proceedings.

Due to this approach, data subjects can easily create a presumption of a data protection violation, and an even greater administrative burden is placed on controllers.

Companies must be able to demonstrate that processing is performed in accordance with the GDPR (Article 24).

This evidence should refer to the general efforts the company undertakes to implement the GDPR in accordance with the law.

Additionally, the evidence should display the measures the company implemented with regard to the respective claimant.

For this purpose, the companies should establish a system for logging individual processing operations to be able to prove who had access to a given individual’s personal data, and what actions were taken with regard to the data.


Given the diversity of procedural rules in European Member States and the GDPR’s broad territorial scope, we can expect plaintiffs to conduct forum-shopping to find the best national courts for launching data class actions.

The GDPR’s accountability provisions require defendants to affirmatively prove that they deployed “appropriate technical and organisational measures”.

Data processing records should be designed with this pre-litigation strategy in mind.

Plaintiffs will use data access requests and complaints to Data Protection Authorities to help build a litigation file.



1 Bill no. 490 on personal data privacy, adopted by the French National Assembly on 13 February 2018.

2 Act for improvement of civil law enforcement of consumer protecting provisions of data privacy law of February 17, 2016, BGBl I 2016, 233.

This article forms part of our Data class actions: the era of mass data litigation guide.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hogan Lovells | Attorney Advertising

Written by:

Hogan Lovells

Hogan Lovells on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.