Mass claims following population screening data breach: a test case for the WAMCA

With this collective claim, the Act on the Resolution of Mass Claims in Collective Action (Wet afwikkeling massaschade in collectieve actie - WAMCA), which entered into force on 1 January 2020, is being put to the test. The Act was designed to help victims of mass harm obtain redress. Professor of Private Law Xandra Kramer at Erasmus School of Law is following the case with great interest, not least because of her involvement, together with researcher Jos Hoevenaars, in a Ministry of Justice study evaluating the Act. In a broadcast by EenVandaag and an article in Algemeen Dagblad, Kramer commented on the potential mass claims and the prospects of compensation for victims.

Invisible damage

In order to award damages, actual harm must be demonstrated. In the case of the Clinical Diagnostics data breach, victims have so far not suffered direct financial losses. Instead, they report experiencing a profound violation of their privacy and distress about their most sensitive information being exposed. As one victim, Andrea Posthuma, told EenVandaag: “I think it is incredibly important that private and sensitive information remains private.”

The legal challenge lies mainly in the issue of ‘invisible’ harm. According to Kramer, it can be relatively straightforward to substantiate a claim in cases of concrete, demonstrable damage. “Consider, for instance, someone who, following the breach, is approached by a fraudster and transfers €3,000.” But in many cases the damage is not financial but psychological in nature. It manifests as feelings of insecurity and stress, and the fear that one’s data may be misused. “This non-material damage is difficult to quantify, yet it lies at the heart of many victims’ concerns.”

Stronger together under the WAMCA?

Mass claims are a way of joining forces against large organisations. Thanks to the WAMCA, a representative body can initiate one collective procedure on behalf of a group of victims to claim compensation, the legal counterpart to the saying ‘strength in numbers’. In principle, this should lower the threshold for seeking redress. Yet in practice, this is not always the case.

“We have not yet seen successful examples of mass claims leading to compensation,” Kramer told Algemeen Dagblad. “Although expectations were high when the Act was introduced, practice has proved more resistant. To date, there has been only one final court judgment in a damages case: a claim by five thousand entrepreneurs against Vattenfall for excessive energy tariffs, which was dismissed. This underlines the complexity of proceedings involving large groups of victims.”

If the matter proceeds to litigation, the mass claim against Clinical Diagnostics would be a new test for the WAMCA. However, this remains uncertain. “The case against Clinical Diagnostics is still at an early stage: the law firms are gathering victims. It is not yet clear whether proceedings will follow. That will only happen if the lawyers believe the case has a reasonable prospect of success,” Kramer concluded.