ABSTRACT
In this article, I examine the test for recovery of non-material damages in Irish law. I argue that the existing tortious test for the recovery of such damages, established in Kelly v Hennessy, is applicable to such claims. However, it is also argued that several recent decisions have failed to engage, or engage fully, with the way in which that test should be applied in data protection cases. I argue that this has resulted in a poorly defined cause of action and that clarity is needed-not only to resolve this foundational concern of legal certainty, but also in light of the possible conflict with EU law which the test in Kelly represents following the decision in Case C-300/21 Austrian Post.
Costello, Róisín Á, The Test in Kelly v Hennessy and Article 82(1) of the General Data Protection Regulation (August 10, 2024), [2024] Irish Judicial Studies Journal volume 8(2).
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