Data Breach - Farley and Others v Paymaster (1836) Ltd

Brighton Town Hall

Author Hassocks5489  Licence CCO 1.0  Source Wikimedia Commons

Jane Lambert

Court of Appeal (Lady Justice King, Lord Justice Warby and Lady Justice Whipple)  Farley and others v Paymaster (1836) Ltd (t/a Equiniti) [2025] EWCA Civ 1117 (22 Aug 2025)

This was an appeal against the order of Mr Justice Nicklin in Farley and Others v Paymaster (1836) Ltd (Trading As Equiniti) [2024] EWHC 383 (KB) (23 Feb 2024), striking out most of the individual claims in a collective action arising from a data breach.  The appeal came before Lady Justice King, Lord Justice Warby and Lady Justice Whipple on 17 and 18 June 2025.  Counsels' arguments were filmed and can be viewed on YouTube at Farley (appellant) v Paymaster (1836) Limited (t/a Equiniti) (respondent) 17 June and Farley (appellant) v Paymaster (1836) Limited (t/a Equiniti) (respondent) 18 June. The Court of Appeal allowed the appeal on 22 Aug 2025 (Farley and Others v Paymaster (1836) Ltd (t/a Equiniti) [2025] EWCA Civ 1117 (22 Aug 2025).  Permission to appeal to the Supreme Court was granted on 17 Dec 2025.  The appeal is listed for 7 and 8 Oct 2026.

Background

The claimants were members of a pension scheme for officers of the Sussex Police administered by the defendant. In August 2019, the defendant administrator sent an annual benefit statement to each member of the scheme. The statement contained an overview of the member's accrued benefits together with his or her name, date of birth, national insurance number and details of his or her salary and pension details. It would have been apparent to anybody reading the statement that the member was or had been a police officer.   The defendant sent some 750 of those statements to wrong addresses. The members affected alleged that this was a misuse of their personal information and an infringement of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance)
OJ L 119, 4.5.2016, pp. 1–88 ("the GDPR"). Those members complained that the infringement had led to injury to their feelings, and in some cases, psychiatric harm from fear of third-party misuse of their personal data. They sued the administrator for compensation for the damage that they had suffered under art 82 (1) of the GDPR.

The Defendant's Application

The defendant applied to strike out the claim for failing to disclose a cause of action, or alternatively summary judgment.  The application came on for hearing before Mr Justice Nickin on 27 and 28 Feb 2023.  The learned judge received written submissions on 18 and 19 May and 1 June 2023.   His lordship allowed the claims of 14 members to proceed as they could show that their statements had been read, but he struck out the remaining claims which numbered over 400.

The Appeal

The members whose claims had been struck out appealed on the ground that the judge had been wrong in law.   In particular, he had been wrong to regard disclosure of the benefit statement to a third party as an essential ingredient of a viable data protection claim. The appellants contended that posting the statement to the wrong address infringed their rights under the data protection legislation. The defendant argued that the compensation claims were factually incredible, insufficient or untenable as a matter of law, or so trivial that they should be dismissed as an abuse of process of the kind identified in Jameel v Dow Jones Inc [2005] EMLR 16, [2005] QB 946, [2005] 2 WLR 1614, [2005] EMLR 353, [2005] EWCA Civ 75.

The Issues

Lord Justice Warby, who delivered the lead judgment, summarized the main issues at para [5]:

"(1) have the appellants set out a reasonable basis for claiming that the respondent's mistake involved infringement of the GDPR ('the infringement issue'); if so, (2) have the appellants stated a basis for claiming compensation under the GDPR and DPA that is reasonable, with a realistic prospect of success at a trial ('the compensation issue'); and if so (3) are the claims nonetheless an abuse of process of the Jameel variety ('the Jameel issue')?"

The Data Protection Legislation

The learned Lord Justice condensed the data protection legislation in para [28] of his judgment:

"The GDPR is EU legislation with direct effect in all EU member states. It enacts a number of data protection rights and obligations and contains provision for their enforcement. Article 5 identifies six 'principles relating to processing of personal data' with which data controllers must comply. Articles 24, 25 and 32 require data controllers to 'implement appropriate technical and organisational measures' to ensure GDPR compliance. Article 82 confers a right to receive compensation for material or non-material damage suffered as a result of an infringement. The GDPR applied with effect from May 2018. By Part 2 of the [Data Protection Act 2018], Parliament enacted provisions supplemental to the GDPR. Those provisions also came into force in May 2018."

He explained at [29] that these are the legislative instruments that apply to the events with which the Court was concerned because the European Union (Withdrawal) Act 2018 provided for the GDPR to remain part of English law until 23:00 on 31 Dec 2020.

Interpretating the GDPR

Lord Justice Warby added at [30] that English courts are bound by principles laid down by the Court of Justice of the European Union ("CJEU") and decisions made by it before 31 Dec 2020 as these are "assimilated EU case law" but not by any principles laid down, or any decisions made, by the CJEU after that date.  English courts "may have regard" to such principles or decisions "so far as it is relevant to any matter before the court". In deciding how to approach the latter class of CJEU decisions, English courts are bound by the law of precedent.

Infringement Issue

His lordship said that the first question to be considered in determining whether the administrator's mistake amounted to an infringement of the GDPR was whether the claimants had set out a reasonable basis for alleging that the defendant had engaged in "processing" their "personal data" within the meaning of the regulation and of the Act.    

He considered the definitions of "personal data" in art 4 (1) of the regulation and s.3 (2) of the Act and described them as "language of extremely broad reach." He added that there had never been any dispute that the information at issue here fell within that language and concluded that clearly it did.  

He turned his attention to the definition of "processing" in art 4 (2) of the regulation and s.3 (4) of the Act. Their definitions, which were very similar, defined "processing" as "any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means" with such illustrative examples as "collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction."  He recalled the CJEU's discussion of art 4 (2) in para [35] of its judgment in Case  C-175/20 “SS” SIA v Valsts ieneumu dienests, EU: C:2022:124, ECLI: EU:C:2022:124, [2022] EUECJ C-175/20:

"It is apparent from the wording of that provision, in particular from the expression 'any operation', that the EU legislature intended to give the concept of 'processing' a broad scope. That interpretation is corroborated by the non-exhaustive nature, expressed by the phrase 'such as', of the operations mentioned in that provision."

Lord Justice Warby noted at [36] that it was common ground that the defendant's operations amounted to "processing."

The learned Lord Justice observed that the defendant might have argued that printing out the statements, stuffing them into envelopes and posting them were manual operations after the processing had been completed, but it did not do so. It actually admitted that those steps did constitute processing.   On the basis of that admission, his lordship ruled that there was no basis for striking out those aspects of the claims.

Compensation Issue

Art 82 GDPR provides:

"(1) Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller ... for the damage suffered."
(2) Any controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation ..."

Before 31 Dec 2020, s.168 (1) of the Data Protection Act 2018 amplified art 82 (1) of the GDPR (right to compensation for material or non-material damage), by adding that 'non-material damage' included distress.

The claimants had pleaded that each of them experienced "anxiety, alarm, distress and embarrassment" at the prospect or possibility that their personal data may have come into the hands of third parties and been misused or exposed to the risk of misuse. That was expressly pleaded as "non-material damage". Secondly, 42 of them alleged that the infringements aggravated a pre-existing medical condition for which general damages were sought without particularizing such aggravation as material or non-material damage.   The administrator invited the Court of Appeal to dismiss those claims as incredible under CPR Part 24.  His lordship declined the invitation as it would have been a strong thing to reject statements of truth without hearing from the witnesses. He did not consider that the Court would be justified in taking that step.

The defendant's next point was that on the true construction of the GDPR and the Data Protection Act 2018, compensation was not recoverable for emotional responses other than distress. Lord Justice Warby rejected that submission. He said that the governing provision was art 82, which referred to "non-material damage" without limitation. S.168 (1) of the Act added that this term "included distress" but it was plain that that was an illustrative point. S.168 did not purport to define or limit the scope of the term "non-material damage" in art 82. Indeed, it seemed clear that Parliament's aim in enacting s.168 (1) was not to limit the ambit of the right to compensation but rather to confirm its breadth.

Despite such authorities as Case C‑300/2 UI v Österreichische Post AG [2023] WLR(D) 221, EU: C:2023:370, [2023] EUECJ C-300/21, ECLI:EU:C:2023:370, Case C‑340/21 VB v Natsionalna agentsia za prihodite EU: C:2023:986, ECLI:EU:C:2023:986, [2024] WLR(D) 17, [2023] EUECJ C-340/21, Case C-456/22 VX v Gemeinde Ummendorf EU: C:2023:988, ECLI:EU:C:2023:988, [2023] EUECJ C-456/22 and Case C‑687/21 BL v MediaMarktSaturn Hagen-Iserlohn GmbH, [2024] 1 WLR 2597, [2024] EUECJ C-687/21, ECLI:EU:C:2024:72, EU: C:2024:72, [2024] WLR(D) 53 to the contrary, the defendant administrator contended that there was a threshold of seriousness which the claimants had not cleared. It argued that the courts of the United Kingdom are no longer bound by decisions of the CJEU handed down after 23:00 on 31 Dec 2020, that they were bound by Lloyd v Google LLC  [2022] 2 All ER 209, [2022] HRLR 1, [2022] 1 All ER (Comm) 1107, [2022] AC 1217, [2021] 3 WLR 1268, [2022] EMLR 6, [2021] UKSC 50 and Prismall v Google UK Ltd [2024] EWCA Civ 1516, [2025] 2 WLR 1224 and that they should not follow the CJEU because its reasoning was flawed and that a threshold of seriousness would eliminate trivial claims and achieve coherence in the law.

Lord Justice Warby did not accept those arguments.  He reviewed the authorities on which the defendant relied and concluded that they did not support the contention that there was a threshold of seriousness for data protection claims in English law.  As for whether the English courts should take a different course from the CJEU, he accepted that it was an option for Parliament.  A judicial decision to do so would require compelling legal reasons.  He remarked at para [67] of his judgment:

"...... the GDPR is an international legal instrument which had direct effect in this jurisdiction at the material time. Further, its domestic successor, the UK GDPR, is post-Brexit legislation in which Parliament decided to adopt the identical language, so far as material to this case. Self-evidently, divergent interpretations of the same legislative text tend to undermine legal certainty. It seems to me that, other things being equal, it makes good legal sense for the court to interpret and apply the GDPR in conformity with settled CJEU jurisprudence."

He analysed the CJEU decisions mentioned above but could see no sufficiently weighty reason for departing on this appeal from the settled CJEU jurisprudence on the threshold of seriousness issue.

However, he said that it was clear from those cases that a claimant could recover compensation for fear of the consequences of an infringement, provided the alleged fear was objectively well-founded.

The Jameel Issue

The defendant relied on the Jameel principle in the strikeout application.   It was summarized by the Court of Appeal in para [175] of their judgment in Municipio de Mariana v BHP Group (UK) Ltd [2022] EWCA Civ 951, [2022] 1 WLR 4691, [2023] 1 All ER 611, [2022] WLR(D) 300, [2022] WLR 4691:

"[P]roceedings may ... be abusive if, even though they raise an arguable cause of action, they are (objectively) pointless and wasteful, in the sense that the benefits to the claimants from success [are] likely to be extremely modest and the costs to the defendants in defending the claims wholly disproportionate to that benefit" (citing Jameel (Yousef) v Dow Jones Co Inc [2005] EWCA Civ 75, [2005] QB 946)

The Supreme Court considered the principle further in Mueen-Uddin v Home Secretary  [2024] UKSC 21, [2024] EMLR 13, [2024] 3 WLR 244, CLW/24/23/1, [2024] 3 All ER 985, [2024] WLR(D) 283.

The administrator relied on the principle in its strikeout and summary judgment application, but Mr Justice Nicklin did not accept it.  It cross-appealed to the Court of Appeal with limited success.  Lord Justice Warby said at para [6 (3)] of his judgment:

"The Jameel jurisdiction does not provide a reason to bypass that process. These claims as a class cannot be categorised as Jameel abuse although the question of whether any individual case is abusive will remain for consideration."

The fact that a claim was small did not mean that it was abusive.  Lord Justice Warby quoted Lord Justice Lewison in Sullivan v Bristol Film Studios [2012] EWCA Civ 570, [2012] EMLR 27 at [29]:

"The mere fact that a claim is small should not automatically result in the court refusing to hear it at all. If I am entitled to recover a debt of £50 .... it would be an affront to justice if my claim were simply struck out."

The defendant had understandable concerns about costs and the difficulty of recovering them if it was successful, but that did not make the proceedings abusive.

The Supreme Court Appeal

The issue on which permission to appeal was granted is whether a threshold of seriousness applies to claims for damages under the GDPR and the Data Protection Act 2018.

Comment

This is an important decision on claims under art 82 (1) for compensation for material and non-material damage resulting from an infringement of the GDPR.  Should the Supreme Court allow Paymaster (1836) Ltd.'s appeal on thresholds of seriousness, its importance will be all the greater.  The Court of Appeal has ruled on what constitutes an infringement and whether concern over who may be reading confidential statement information of itself constitutes non-material damage.  The Court has also followed the CJEU's decisions on thresholds of seriousness and rejected the Jameel principle.  

Anyone wishing to discuss this case or this article may call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact form at any time.

Art 82 (1) GDPR - GP v Juris GmbH

Landgericht Saarbrücken

Author Anna16 Licence CC BY-SA 3.0  Source Wikimedia Commons

 

Jane Lambert

Court of Justice of the European Union (K. Jürimäe, President of the Chamber, N. Piçarra and N. Jääskinen (Rapporteur), Judges), Case 741/21 GP v juris GmbH  [2024] EUECJ C-741/21, ECLI:EU:C:2024:288, EU: C:2024:288

This was a request by the Landgericht Saarbrücken for a preliminary ruling on the interpretation of art 82 (1) and (3) of the GDPR (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) OJ L 119, 4.5.2016, pp. 1–88) read in conjunction with arts 29 and 83 and the 85th and 146th recitals. The request was made in the course of proceedings that the claimant, GP, had brought against juris GmbH, the defendant, for compensation for damage arising from the defendant's unauthorised processing of his personal data.

The Dispute

The defendant published online legal information as well as newsletters.  One of its subscribers was the claimant, a lawyer in independent private practice.  He discovered that juris GmbH had used his personal data for direct marketing.  He withdrew his consent to the processing of his personal data and closed his email and telephone updating accounts, but continued to receive newsletters from the defendant company.   Even though he had withdrawn his consent, he continued to receive mailshots from juris, including some with a code that enabled him to access an online form containing his personal data, which had been created long after he had withdrawn his consent to the processing of his personal data.

The Action

GP launched an action against juris GmbH in the Landgericht Saarbrücken (the intermediate court of first instance for Saarbrücken) for compensation for material and non-material damage under art 82 (1) of the GDPR. His material damage consisted of the costs of instructing a bailiff and notary.  He alleged that his loss of control over his personal data resulting from the unauthorised processing constituted non-material damage.  Juris denied liability.  It stated that it had established a system for managing objections to direct marketing.  Its explanation for the stray mailshots was isolated slip-ups by its employees, and that the cost of preventing such slip-ups altogether was prohibitive. Mere breaches of obligation under the GDPR, such as non-compliance with objections under art 21 (3), cannot, by themselves, constitute ‘damage’ within the meaning of art 82 (1).

The Reference

The Landgericht Saarbrücken decided to stay the proceedings and refer the following questions to the Court of Justice of the European Union ("CJEU") for a preliminary ruling under art 267 of the Treaty on the Functioning of the European Union:

"(1) In the light of recital 85 and the third sentence of recital 146 of the GDPR, is the concept of ‘non-material damage’ in Article 82 (1) of the GDPR to be understood as covering any impairment of the protected legal position, irrespective of the other effects and materiality of that impairment?
(2) Is liability for compensation under Article 82 (3) of the GDPR excluded by the fact that the infringement is attributed to human error in the individual case on the part of a person acting under the authority of the processor or controller within the meaning of Article 29 of the GDPR?
(3) Is it permissible or necessary [to base] the assessment of compensation for non-material damage [on the] criteria for determining fines set out in Article 83 of the GDPR, in particular in Article 83 (2) and 83(5) of the GDPR?
(4) Must the compensation be determined for each individual infringement, or are several infringements - or at least several infringements of the same nature - penalised by means of an overall amount of compensation, which is not determined by adding up individual amounts but is based on an evaluative overall assessment?"

Judgment

The CJEU delivered its reply in Case 741/21 GP v juris GmbH  [2024] EUECJ C-741/21, ECLI:EU:C:2024:288, EU: C:2024:288 on 11 April 2024.

Legislation

The Court considered the 85th, 146th and 148th recitals of the GDPR and arts 4 (1), (7) and (12), 5, 21, 24 (1) and (2), art 25 (1), 29, 32 (1) (b), (2) and (4), 79, 82 (1), (2) and (3), 82 (2) (a), (b) and (k), (3) and (5) and 84 (1) of its provisions.

The First Question

Juris GmbH challenged the admissibility of the first question on the ground that the damage alleged by GP in the main proceedings, a loss of control over his personal data, did not occur.  It alleged that GP's data had been lawfully processed under his contract with the defendant company.  The CJEU rejected the challenge.  It was for the national court to determine the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment in the proceedings before it and the relevance of the questions that it submits to the Court.  There was no reason in this case to doubt the question's relevance.

The Court reframed the Landgericht's first question as "whether Article 82 (1) of the GDPR must be interpreted as meaning that an infringement of provisions of that regulation which confer rights on the data subject is sufficient, in itself, to constitute ‘non-material damage’, within the meaning of that provision, irrespective of the degree of seriousness of the harm suffered by that person."  

Referring to para [58] of its judgment in  Case C‑687/21 BL v MediaMarktSaturn Hagen-Iserlohn GmbH, [2024] 1 WLR 2597, [2024] EUECJ C-687/21, ECLI: EU: C:2024:72, EU: C:2024:72, [2024] WLR(D) 53 and the cases cited therein, the Court noted that it had already interpreted art 82 (1) as meaning that the mere infringement of that regulation is not sufficient to confer a right to compensation.  The existence of ‘damage’, material or non-material, or of ‘damage’ which has been ‘suffered’ constitutes one of the conditions for the right to compensation laid down in art 82 (1).   So, too, does the existence of an infringement of that regulation and of a causal link between that damage and that infringement, those three conditions being cumulative.   Applying paras [60] and [61] of that judgment and the cases cited, a person seeking compensation for non-material damage under art 82 (1)  must establish not only the infringement of provisions of that regulation, but also that such infringement caused him or her such damage.

The Court added that it had interpreted art 82 (1) as precluding a national rule or practice which makes compensation for non-material damage subject to the condition that the damage suffered by the data subject has reached a certain degree of seriousness, while emphasising that that person is nevertheless required to demonstrate that the infringement of that regulation caused him or her such non-material damage (paras [59] and [60] of MediaMarktSaturn and the cases referred to in those paragraphs).

The answer to the first question was that art 82 (1) must be interpreted as meaning that an infringement of provisions of that regulation which confer rights on the data subject is not sufficient, in itself, to constitute ‘non-material damage’ within the meaning of that provision, irrespective of the degree of seriousness of the damage suffered by that person.

The Second Question

The Landgericht asked whether art 82 (3) must be interpreted as meaning a controller can be exempted from liability under art 83 (1) by claiming that the damage in question was caused by the failure of a person acting under his authority within the meaning of art 29.   

The Court observed that it had already held in Case C‑667/21 ZQ v Medizinischer Dienst der Krankenversicherung Nordrhein, Körperschaft des öffentlichen Rechts ECLI:EU:C:2023:1022, EU: C:2023:1022, [2023] EUECJ C-667/21  from a combined analysis of art 82 (2) and (3) that that article provides for a fault-based regime, in which the controller is presumed to have participated in the processing constituting the breach of the GDPR in question, so that the burden of proof lies not with the person who has suffered damage but with the controller.

As an employee of the controller is a natural person acting under the authority of that controller, it is for that controller to ensure that his or her instructions are correctly applied by his or her employees. Accordingly, the controller cannot avoid liability under art 82 (3) simply by relying on negligence or failure on the part of a person acting under his or her authority.   If it were accepted that a controller could be exempted from liability merely by relying on the failure of a person acting under his or her authority, that would undermine the effectiveness of the right to compensation under art 82 (1).

The answer to the second question was that art 82 must be interpreted as meaning that it is not sufficient for the controller to claim that the damage in question was caused by the failure of a person acting under his or her authority within the meaning of art 29 to be exempted from liability under art 82 (3).

The Third and Fourth Questions

The CJEU took the referring court's third and fourth questions together.  That court had asked whether art 82 must be interpreted as meaning that it is necessary to:

• apply mutatis mutandis the criteria for setting the amount of administrative fines laid down in art 83 GDPR, and/or 
• take account of the fact that several infringements of the GDPE concerning the same processing operation affect the person seeking compensation

 In determining the amount of damages due as compensation for damage under that article.

The CJEU began by pointing out that arts 82 and 83 serve different functions. Art 82 governs the right to compensation and liability while art 83 determines the ‘general conditions for imposing administrative fines.    It follows that the criteria set out in art 83 for determining the amount of administrative fines cannot be used to assess the amount of compensation under art 82.

The GDPR does not contain any provision relating to the assessment of the damages due under art 82.  For the purposes of that assessment, the national courts must apply the domestic rules of each Member State relating to the extent of monetary compensation, provided that the principles of equivalence and effectiveness of EU law are complied with (see paras [83] and [101] of Krankenversicherung Nordrhein and the cases referred to and para [53] of MediaMarktSaturn).   The Court has emphasized that art 82 has a compensatory function and not punitive. The right to compensation does not fulfil a deterrent, or even punitive, function. It follows that the amount cannot exceed the full compensation for that damage (para [86] of Krankenversicherung Nordrhein).

As to the way in which national courts must assess the amount of monetary compensation under art 82 of in the case of multiple infringements affecting the same data subject, it should, first of all, be pointed out that it is for each Member State to establish the criteria for determining the amount of that compensation, subject to compliance with the principles of effectiveness and equivalence of EU law.  Next, in view of the compensatory rather than punitive function of art 82, the fact that several infringements have been committed by the controller in relation to the same data subject cannot constitute a relevant criterion for the purposes of assessing the compensation to be awarded to that data subject under art 82. Only the damage actually suffered by the data subject must be taken into consideration to determine the amount of money due by way of compensation.

The answer to the third and fourth questions is that art 82 (1) of the GDPR must be interpreted as meaning that it is not necessary to:

• apply mutatis mutandis the criteria for setting the amount of administrative fines laid down in art 83; and/or 
• take account of the fact that several infringements of that regulation concerning the same processing operation affect the person seeking compensation

to determine the amount of money due as compensation for damage based on that article.

Ruling

The CJEU ruled as follows:

"1. Article 82 (1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) must be interpreted as meaning that an infringement of provisions of that regulation which confer rights on the data subject is not sufficient, in itself, to constitute ‘non-material damage’ within the meaning of that provision, irrespective of the degree of seriousness of the damage suffered by that person.
2. Article 82 of Regulation 2016/679 must be interpreted as meaning that it is not sufficient for the controller, in order to be exempted from liability under paragraph 3 of that article, to claim that the damage in question was caused by the failure of a person acting under his or her authority, within the meaning of Article 29 of that regulation.
3. Article 82 (1) of Regulation 2016/679 must be interpreted as meaning that in order to determine the amount of damages due as compensation for damage based on that provision, it is not necessary, first, to apply mutatis mutandis the criteria for setting the amount of administrative fines laid down in Article 83 of that regulation and, second, to take account of the fact that several infringements of that regulation concerning the same processing operation affect the person seeking compensation."

Comment

This is another important authority on the assessment of compensation for the infringement of the GDPR under art 82 (1).  In this decision, the CJEU made clear that the rules for assessing fines under art 83  are not to be taken into account for determining compensation under art 82 (1).  The regulation sets no criteria for such assessment other than that the function art 82 (1) is not punitive but compensatory.  It is a matter for the national courts subject to the principles of equivalence and effectiveness of EU law.

Another takeaway from the decision is that a controller cannot escape liability under art 82 (3) GDPR by showing that its employee had slipped up.   It is surprising that juris GmbH believed that the point was worth arguing.   As the Court observed, it would have undermined the right to compensation under art 82 (1) had juris GmbH succeeded.

Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 during normal UK office hours or send me a message through my contact form.

IC fines Data Controller more than £1.2 million for Infringing Art 5 (1) (f) UK GDPR

 

Jane Lamebert

LastPass UK Ltd Penalty Notice 20 Nov 2025

By para [1] of his penalty notice dated 20 Nov 2025, the Information Commissioner for the United Kingdom ordered  LastPass UK Ltd ("LastPass") to pay a penalty of £1,228,283 pursuant to s.155 (1) (a) of the Data Protection Act 2018 for infringing art 5 (1) (f) and art 32 (1) of Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as amemded ("the UK GDPR").

The Obligation

Art 5 (1) (f) of the UK GDPR provides:

"Personal data shall be

................

(f)   processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’)."

Art 5 (2) further provides that the controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1, a principle known as "accountability".

Art 32 (1) amplifies the above duty:

"Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
(a) the pseudonymisation and encryption of personal data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
(d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing."

The Infringement

The Commissioner found that LastPass had infringed arts 5 (1) (f) and 32 (1) between 31 Dec 2021 and 31 Dec 2024 in failing to implement appropriate technical and organizational measures to ensure an appropriate level of security for the personal data for which the company was responsible, and the ongoing confidentiality and integrity of its processing systems and services.  

The infringements resulted from allowing employees to access accounts from a personal device, where the latter contained the decryption keys required to access customers’ personal data and combine their personal and employee business accounts so that they could be accessed by a single master password.  Because LastPass failed to implement and use appropriate technical and organizational measures, personal data relating to 1,631,410 customers in the UK were unlawfully accessed in two incidents during August 2022.

Enforcement

S.l55 (1) (a) of the Data Protection Act 2018 provides that the Commissioner may, by written notice, require that person to pay to the Commissioner an amount specified in the notice if he is satisfied that a person has failed to comply with any of the provisions of the UK GDPR specified in section 149 (2) of the Act.

Appeal

Para [228] of the penalty notice advised LastPass that it had a right of appeal against both the notice and the amount of the penalty to the First-tier Tribunal (General Regulatory Chamber) (Information Rights) to be exercised within 28 days of the date of the notice.

Civil Liability

In addition to the Information Commissioner's administrative sanctions, anyone who suffers material or non-material damage as a result of an infringement of the UK GDPR has a right to compensation from the controller for the damage suffered under art 82 (1) of the regulation (see Taking your case to court and claiming compensation on the ICO website).

Further Information

Anyone wishing to discuss this article may call me on 020 7404 5252 during UK office hours or send me a message through my contact form.