GDPR. CASE LAW FOR NON CONSENT

NW6NW6

Thanks .
The business took a photograph of me using their services on their property was taken without my knowledge or consent. 
This was then used in their brochure advertising their business without my consent or knowledge for 5 years.
They claim to have my verbal consent which is untrue and did not obtain written consent as per the GDPR regs.
I understand my photograph is my personal data and they have infringed my data rights and I am due compensation under the GDPR regs

powerful_Rogue

NW6NW6 said:

Thanks .
The business took a photograph of me using their services on their property was taken without my knowledge or consent. 
This was then used in their brochure advertising their business without my consent or knowledge for 5 years.
They claim to have my verbal consent which is untrue and did not obtain written consent as per the GDPR regs.
I understand my photograph is my personal data and they have infringed my data rights and I am due compensation under the GDPR regs

How much are you sueing them for? Have you complained to the ICO?

Grumpy_chap

NW6NW6 said:

Thanks .
The business took a photograph of me using their services on their property was taken without my knowledge or consent. 
This was then used in their brochure advertising their business without my consent or knowledge for 5 years.
They claim to have my verbal consent which is untrue and did not obtain written consent as per the GDPR regs.
I understand my photograph is my personal data and they have infringed my data rights and I am due compensation under the GDPR regs

What type of services / property is it that you were using?

It is not unusual for venues that take photographs of Clients for marketing purposes to cover this in their general Ts&Cs. 

For example, if you stay at a holiday site, then there may be a notice displayed at check-in (that no-one reads) or it may be part of the waffle that no-one listens to as part of the check-in process.  All you paid attention to was the part where they said "here are your keys, breakfast is 8 til 10, and check out by 11, you are in chalet 603" then they said "is that all OK?"  and you nodded, grabbed the keys and enjoyed the holiday.  In doing that you also accepted the part where they said "we sometimes take photos for marketing"...

What compensation do you feel you are due in any case?

noitsnotme

NW6NW6 said:

Thanks .
The business took a photograph of me using their services on their property was taken without my knowledge or consent. 
This was then used in their brochure advertising their business without my consent or knowledge for 5 years.
They claim to have my verbal consent which is untrue and did not obtain written consent as per the GDPR regs.
I understand my photograph is my personal data and they have infringed my data rights and I am due compensation under the GDPR regs

GDPR does not give you the right to automatic compensation.  It gives you the right to CLAIM compensation in court, which of course might be denied.

As per the ICO website…

”The GDPR gives you a right to claim compensation from an organisation if you have suffered damage as a result of it breaking data protection law. This includes both “material damage” (e.g. you have lost money) or “non-material damage” (e.g. you have suffered distress).”

https://ico.org.uk/your-data-matters/data-protection-and-journalism/taking-your-case-to-court-and-claiming-compensation/

So what loss or distress have you suffered?  What material evidence do you have that would mean a court wouldn’t just throw out your claim?

powerful_Rogue

Also direct from the ICO:

You should also bear in mind that the court can award costs to you or against you in certain circumstances. For example, if you fail to demonstrate you have suffered damage or distress, the court will not award you compensation and could order you to pay the other party’s costs.

Undervalued

NW6NW6 said:

Thanks .
The business took a photograph of me using their services on their property was taken without my knowledge or consent. 
This was then used in their brochure advertising their business without my consent or knowledge for 5 years.
They claim to have my verbal consent which is untrue and did not obtain written consent as per the GDPR regs.
I understand my photograph is my personal data and they have infringed my data rights and I am due compensation under the GDPR regs

This is far more complex than you realise.

Firstly the GDPR only came into force in May 2018. Even if (big IF) that gave you some rights that you didn't have before they wouldn't be expected to scrap any existing printed literature etc.

Does the photograph identify you in any way (other than obviously to people who know you)? Are you a public figure so that you would be recognised and identified by many people who do not know you personally?

As other have said you very likely did give consent as part of agreeing to their services which, based on what you have said, must have been over five years ago.

Generally, you do not need somebody's consent to take their photograph. In a public place (or in a private place to which the public has access), in many ways as a photographer you are in a stronger position if you don't ask the person or direct them in anyway. As soon as you say to somebody "can I take your photograph" or "smile please" they become a model and acquire some additional rights.

What loss or damage have you suffered as a result of this photograph? Or are you just looking to make a fast buck?

NW6NW6

The photograph was taken in a residential care home and then used in their brochure. I am a very private person and do not like to be photographed, included in the photograph was a member of my family who had just passed away when I made the discovery.
I was told the photograph had been deleted but it was still online a year later

I am claiming £1000 per year for 5 years. They claim to have my consent I have asked them to evidence this but they have not done so 

The ICO does not award compensation

noitsnotme

How have you calculated your losses to be £5000?!  What evidence do you have to back that up?

Nobody said the ICO awards compensation, but you are expected to mitigate your ‘losses’ prior to instigating a court claim and contacting the ICO to assist in taking the photograph down would be seen as a positive step.

You also seem to infer that you only found out about it more recently so you certainly have zero loss or distress for the time you didn’t even know it was there.

Be very careful as a judge won’t take kindly to you wasting their time.  You recently won a parking ticket case - you are being more like the private parking company in this case.

powerful_Rogue

NW6NW6 said:

The photograph was taken in a residential care home and then used in their brochure. I am a very private person and do not like to be photographed, included in the photograph was a member of my family who had just passed away when I made the discovery.
I was told the photograph had been deleted but it was still online a year later

I am claiming £1000 per year for 5 years. They claim to have my consent I have asked them to evidence this but they have not done so 

The ICO does not award compensation

So all you're after is the ££££? Clearly if it is a GDPR breach as you seem to think, the ICO would be the authority to go to.

You will be laughed out of court with that figure, and costs potentially awarded to the other side. How have you got to the figure of £1000 per year?

Undervalued

NW6NW6 said:

The photograph was taken in a residential care home and then used in their brochure. I am a very private person and do not like to be photographed, included in the photograph was a member of my family who had just passed away when I made the discovery.
I was told the photograph had been deleted but it was still online a year later

I am claiming £1000 per year for 5 years. They claim to have my consent I have asked them to evidence this but they have not done so 

The ICO does not award compensation

Which pre dates the GDPR under which you seem to think you have a claim!

Whilst it might be reasonable for it to be removed from a website, they would not be expected to scrap large stocks of printed literature.