PLD Article 6. Damage

In recognition of the growing relevance and value of intangible assets, the destruction or corruption of data, such as digital files deleted from a hard drive, should also be compensated for, including the cost of recovering or restoring those data. The protection of natural persons necessitates compensation being available for material losses resulting not only from death or personal injury, such as funeral or medical expenses or lost income, and from damage to property, but also for destruction or corruption of data. Destruction or corruption of data does not automatically result in a material loss if the victim is able to retrieve the data at no cost, such as where a back-up of the data exists or the data can be downloaded again, or an economic operator restores or recreates temporarily unavailable data, for example in a virtual environment. Destruction or corruption of data is distinct from data leaks or breaches of data protection rules, and, consequently, compensation for infringements of Regulation (EU) 2016/679 or (EU) 2018/1725 of the European Parliament and of the Council or Directive 2002/58/EC or (EU) 2016/680 of the European Parliament and of the Council is not affected by this Directive.

In the interest of legal certainty, this Directive should clarify that personal injury includes medically recognised and medically certified damage to psychological health that affects the victim’s general state of health and could require therapy or medical treatment, taking into account, inter alia, the International Classification of Diseases of the World Health Organization.

In line with this Directive’s objective of making compensation available only to natural persons, damage to property used exclusively for professional purposes should not be compensated under this Directive. In order to address a potential risk of litigation in an excessive number of cases, the destruction or corruption of data that are used for professional purposes, even if not exclusively so, should not be compensated for under this Directive.

While Member States should provide for full and proper compensation for all material losses resulting from death or personal injury, or from damage to or destruction of property, and destruction or corruption of data, the rules on calculating compensation should be laid down by Member States. Furthermore, compensation for non-material losses resulting from damage covered by this Directive, such as pain and suffering, should be provided in so far as such losses can be compensated for under national law.

Types of damage other than those provided for in this Directive, such as pure economic loss, privacy infringements or discrimination, should not by themselves trigger liability under this Directive. However, this Directive should not affect the right to compensation for any damage, including non-material, under other liability regimes.

In order to protect natural persons, damage to any property owned by a natural person should be compensated for. Since property is increasingly used for both private and professional purposes, it is appropriate to provide for compensation for damage to such mixed-use property. In light of this Directive’s objective of protecting natural persons, property used exclusively for professional purposes should be excluded from its scope.