Recital 118*

Go to related Article 77

Commission Proposal

 (118) Any damage which a person may suffer as a result of unlawful processing should be compensated by the controller or processor, who may be exempted from liability if they prove that they are not responsible for the damage, in particular where he establishes fault is on the part of the data subject or in case of force majeure.

EDRi’s proposed amendment

(118) Any damage which a person may suffer as a result of unlawful processing should be compensated by the controller or processor, who may be exempted from liability if they prove that they are not responsible for the damage, in particular where he establishes that the balance of fault is on the part of the data subject or in case of force majeure.

Justification
The existence of any level of fault on the part of the data subject should not automatically remove all responsibility from the data controller or processor if they share the fault.

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