Data litigation
Mitigating exposure in an area with an elevated financial risk profile
Market view: more lawsuits
More and more contentious administrative and civil lawsuits are being filed in the field of data protection and data law, both internationally and in Germany. More – and higher – fines are being imposed by data protection authorities, and companies are pushing back. New legal acts, enforceable by fines, are also being introduced in cyber and data law, and these will trigger further proceedings. Demands under civil law for access, erasure, and the like by affected parties are likewise becoming significantly more frequent. There is also a growing trend towards mass claims and collective action: consumer protection associations, debt collection companies, litigation financiers, specialist law firms, and legal tech providers wait in the wings to aggregate claims of many affected individuals in the wake of data breaches and data protection violations.
Strategy and prevention
Against this backdrop, it is important for companies to address the challenges of data litigation early and strategically. Preventive, clear allocation of responsibilities enables faster and more consistent responses. Establishing processes and IT structures that allow for rapid compliance with data subject rights also reduces the risk of lawsuits. This is particularly relevant for foreseeably likely claims, such as access requests by departing employees. It is also essential to embed the data protection function within incident response and crisis management processes.
The risk of fines can be significantly reduced even in the early stages of a dispute with an authority. When responding to inquiries from a supervisory authority, it is crucial to understand the authority’s intent and to avoid escalation wherever possible. Careful preparation for regulatory audits is advisable, even when lead times are short. It is also vitally important throughout to coordinate the handling of regulatory investigations with any ongoing civil proceedings.
In cases involving claims for damages, case law has been inconsistent to date. Nevertheless, the growing body of decisions – including rulings of appellate courts and courts of final instance – allows for increasingly reliable assessments of prospects of success and the shaping of defence strategies. One risk that should not be underestimated in damages claims is the knock-on effect. An adverse judgment may not only harm a company’s reputation, but also trigger further lawsuits. This makes it all the more important to analyse prospects of success and risks of litigation, to explore options for out-of-court settlements and of course – since not every dispute can be settled out of court – to decide on litigation strategies and court representation, whether in individual actions or collective redress proceedings. We advise and represent you at every stage of a dispute.
Our services
- Advisory on strategy and prevention, including efficient out-of-court dispute resolution
- Legal analysis of the (alleged) data protection violation
- Administrative and fine proceedings: advice and support in cooperation and communication with authorities; representation in proceedings
- Civil damages claims: litigation risk analysis; specialist advice and strategically guided defence; development of compliance
- Strategies for follow-up and prevention of (further) data protection violations
- Advisory and representation in mass proceedings using modern legal tech applications
