Liability for data loss - Legal Advice Centre

Questioner

I had managed to save data from a malfunctioning external hard drive. I then put the saved data on a brand new external hard drive, but that also broke after 3 days while I had used the drive in a normal way. My laptop no longer recognizes the drive. Now I have lost important data. Can I hold the supplier liable for consequential damage on the basis of a legal provision, so that they have to pay a data recovery company? Data is not a 'thing', which means I probably cannot rely on the Product Liability Act?

Lawyer

This is about consequential damage. Your problem is first of all to prove that you have indeed suffered damage, your statement that there is valuable data on the - now defective - new hard disk is insufficient for that. In that case, the supplier only has to provide you with a new hard disk. A second hurdle is the question of whether you have carefully connected/installed the hard disk. The supplier will undoubtedly argue that you have handled the hard disk unskillfully or carelessly. Most suppliers also exclude consequential damage in their AV. You can try to have the data retrieved from the hard disk and then hold the hard disk supplier liable for the costs. The other party will probably argue that it is a common knowledge that hard disks can malfunction and that, if it is indeed important data to you, you have been negligent in making sufficient backup copies. I'm afraid you'll have to pay the costs of reconstructing the data yourself.

Questioner

Thank you very much for your response RA Korving! In your response you write that it will be difficult to prove that I have suffered damage, but that does not seem to be a problem to me. The invoice from the data recovery company should be sufficient proof, right? Because that is precisely the consequential damage that I suffer: the recovery of the lost data and the amount that I have to pay for it. That is what I want to hold them liable for. Furthermore, I don't think I was negligent in making sufficient backups, because that's exactly what I was doing. To transfer more than 2TB of data, that's not possible in 3 days. And after 3 days it broke! So I didn't have enough time to make sufficient backups. So I wonder if I can't dismiss that argument that they might possibly make, just because of the short time frame that this product broke. In addition, it cannot be said that I have not handled the external hard drive professionally. It is simply plug and play. Just plug in the cable and put data on it. I have not dropped the new external hard drive either, so that cannot be proven either. And there is a reverse burden of proof according to the law anyway if a product breaks within 6 months. They would have to prove that it is my own fault, instead of me having to prove that I have not done anything strange with it. And they cannot prove that, because I have not done anything wrong with it. What is perhaps the biggest problem is that this supplier has indeed excluded liability for consequential damage and loss of data in their general terms and conditions, provided that this is not in conflict with mandatory legal provisions. But is such an exoneration clause not against reasonableness and fairness (the grey list)? Finally, I would like to thank you very much for thinking along with me! I really appreciate it!