Aug 042021
 
 August 4, 2021  Posted by  Breaches, Non-U.S.

Sarah Warburton of the New Zealand Privacy Commissioner’s Office has an explainer on how damanges for emotional harm are determined under New Zealand law. Her article begins:

Under the Privacy Act, the Human Rights Review Tribunal (“the Tribunal”) can award damages for emotional harm caused by a privacy breach. Damages are compensatory rather than punitive; the goal is to compensate individuals for specific harm rather than punish a defendant’s bad behaviour.

Calculating damages for emotional harm is not an exact science, especially when there has been no quantifiable financial loss. We have identified some factors contributing to the different amounts awarded for emotional harm in recent cases, which are helpful to consider when balancing the risks and benefits of taking your complaint to the Tribunal.

What damages can the Tribunal award?

The Tribunal can award damages if, as a result of a privacy breach, the complainant has:

  • suffered a pecuniary loss
  • reasonably incurred expenses
  • lost a benefit that they might reasonably have expected, or
  • suffered humiliation, loss of dignity, and injury to feelings.

The Tribunal has provided some useful guidance on quantifying emotional harm caused by a privacy breach. There are three broad bands of emotional harm: less serious breaches can see up to $10,000, more serious awards have ranged from $10,000 to $50,000, and the most serious awards have been more than $50,000[1].

Read more on the Office of the Privacy Commissioner.

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