Germany: Data Protection Laws of the World Handbook: Second Edition - Germany
E-Commerce And Privacy Alert

LAW

The main legal source of data protection in Germany is the Federal Data Protection Act (Bundesdatenschutzgesetz in German) ("BDSG") which implements the European data protection directive 95/46/EC.

Additionally, each German state has a data protection law of its own. In principle, the data protection acts of the individual states intend to protect personal data from processing and use by public authorities of the states whereas the BDSG intends to protect personal data from processing and use by federal public authorities and private bodies. Enforcement is through the data protection authorities of the German states. The competence of the respective state authority depends on the place of business of the data controller.

DEFINITION OF PERSONAL DATA

The BDSG defines personal data as any information concerning the personal or material circumstances of an identified or identifiable natural person ("data subject").

DEFINITION OF SENSITIVE PERSONAL DATA

Sensitive or rather special categories of personal data under the BDSG are any information on racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sex life.

NATIONAL DATA PROTECTION AUTHORITY

Each individual German state has a Data Protection Authority which is responsible for the enforcement of data protection laws and competent for data controllers established in the relevant state.

REGISTRATION

Unlike most European data protection regimes, German data protection law does not require a registration of automated data processing. In addition, even though the BDSG provides for a notification, such notification is the exception rather than the rule.

This follows from the fact that the notification requirement is waived if the data controller has appointed a data protection officer ("DPO"), which is mandatory for all companies of a certain size (the obligation applies if more than nine persons are regularly involved in the automated processing of personal data). Automated data processing operations with respect to sensitive data are subject to prior checking by the data controller's internal DPO.

DATA PROTECTION OFFICERS

Data controllers that deploy more than nine persons with the automated processing of personal data are obliged to appoint a DPO. Such a DPO may either be an employee or an external consultant that has sufficient knowledge in the field of data protection.

The DPO shall in particular monitor the proper use of data processing programs and take suitable steps to familiarise the persons employed in the processing of personal data with the provisions of data protection.

As far as sensitive personal data is concerned, such personal data is subject to examination prior to the beginning of processing (prior checking) by the appointed DPO unless the data subject has consented. In case of doubt, the DPO shall liaise with the competent authorities.

COLLECTION AND PROCESSING

The collection, processing and use of personal data is only admissible if explicitly permitted by the BDSG or any other legal provision or if the data subject has explicitly consented in advance.

In practice, Section 28 BDSG is the most applicable statutory provision permitting collection, processing and use of personal data. For example, Section 28 para. 1 no. 1–3 BDSG provide that the collection, processing or use of personal data as a means of fulfilling one's own business purposes shall be admissible if it is:

• necessary to create, perform or terminate a legal obligation or quasi legal obligation with the data subject;
• necessary to safeguard legitimate interests of the controller and there is no reason to assume that the data subject has an overriding legitimate interest in ruling out the possibility of processing or use; or
• the personal data is generally accessible or the controller would be allowed to publish them, unless the data subject has a clear and overriding interest.

Sensitive personal data may only be processed if:

• it is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his or her consent;
• the data involved has manifestly been made public, by the data subject;
• it is necessary to assert, exercise or defend legal claims and there is no reason to assume that the data subject has an overriding legitimate interest in ruling out the possibility of collection, processing or use; or
• it is necessary for the purposes of scientific research, where the scientific interest in carrying out the research project significantly outweighs the data subject's interest in ruling out the possibility of collection, processing and use and the purpose of the research cannot be achieved in any other way or would require a disproportionate effort.

Processing of employee data for employment related purposes is subject to a separate provision (Sec. 32 BDSG) according to which the collection, processing and use of employee data is only permitted regarding decisions on the establishment, implementation and termination of the employment contract.

Whichever of the above conditions is relied upon, upon the first collection of personal data without the data subject's knowledge, the data controller must provide the data subject with "fair processing information". This includes the identity of the data controller, the purposes of processing and any other information needed under the circumstances to ensure that the processing is fair.

TRANSFER

With respect to the transfer of personal data to third parties it needs to be differentiated between a transfer within the European Economic Area ("EEA") and a transfer to any other country outside the EEA:

• Due to the harmonisation of data protection law by European law, a transfer of personal data to third parties within the EEA is treated as if it took place within the territory of Germany, ie it is admissible if explicitly permitted by the BDSG or any other legal provision or if the data subject has explicitly consented in advance.
• The transfer of personal data to a country outside the EEA ("cross border") is admissible provided the following conditions are fulfilled:
• • regardless of the fact that the personal data is transferred cross border, a legal basis for the transfer as such is required, i.e. in the absence of consent, it needs to be explicitly permitted by the BDSG or any other legal provision; and
  • the data recipient needs to ensure an adequate level of data protection. The European – Commission considers data recipients in Andorra, Switzerland, Canada, Argentina, Guernsey, the Isle of Man, Faeroe Islands Israel and New Zealand as providing such an adequate level (as of 19 December 2012). In case the data recipient is seated in the US, it should comply with the US Department of Commerce's Safe Harbour Privacy Principles. In addition, adequate safeguards with respect to the protection of personal data can be achieved by entering into binding corporate rules (only applicable if the data recipient is a group company) or by entering into a data protection agreement based on the EU model clauses of the European Commission). Please note that a data transfer agreement based on the EU model clauses must be strictly in compliance with the wording of the model clauses provided by the EU Commission.
• Whether there is a notification requirement, depends on the legal basis for the cross-border transfer. While a transfer based on binding corporate rules always requires involvement of the authorities, a transfer based on Safe Harbour principles or EU model clauses does not. Such transfer is handled differently by the responsible authorities. However, most authorities do not require a notification.

SECURITY

Data controllers must take appropriate technical and organisational measures against unauthorised or unlawful processing and against accidental loss or destruction of, or damage to, personal data. The measures taken must ensure a level of security appropriate to the harm which might result from such unauthorised or unlawful processing or accidental loss, destruction or damage as mentioned above, and appropriate to the nature of the data.

BREACH NOTIFICATION

A breach notification duty has recently been implemented into the BDSG. According to Sec. 42a BDSG the notification duty applies if:

• sensitive personal data; personal data subject to professional secrecy, personal data related to criminal and/or administrative offences, personal data concerning bank or credit card accounts, certain telecommunications and online data is abused or lost and an authorised third party acquires knowledge; and
• in case of telecommunications and online data, there is a serious threat of interference with interests of concerned individuals.

Data controllers are obliged to inform supervisory authorities and the concerned individuals.

ENFORCEMENT

Violation of German data protection laws are subject to pecuniary fines up to EUR 300,000 per violation (administrative offence). In the case of wilful behaviour or if conducted in exchange for a financial benefit (criminal offence), by imprisonment of up to 2 years or a fine depending on how severe the violation is. Authorities may also skim profits generated by data protection breaches.

In the past, German data protection authorities were rather reluctant concerning the enforcement of data protection law, ie very few official prosecution procedures were opened and imposed fines were rather low. However, this has recently changed and we note a tendency to a stricter enforcement. This particularly relates to several data protection scandals involving loss and disclosure or misuse of personal data in the recent years.

Further, reputation damages are usually quite severe if data protection breaches become public. Civil liabilities as well as injunctive reliefs and skimming of profits are likely under the Unfair Competition Act.

ELECTRONIC MARKETING

In general, unsolicited electronic marketing requires prior opt-in consent. The opt-in requirement is waived under the "same service/product" exemption. The exemption concerns marketing emails related to the same products/services as previously purchased from the sender by the user provided:

• the user has been informed of the right to opt-out prior to the first marketing email;
• the user did not opt-out; and
• the user is informed of the right to opt-out of any marketing email received. The exemption applies to electronic communication such as electronic text messages and email but does not apply with respect to communication sent by fax.

Direct marketing emails must not disguise or conceal the identity of the sender.

ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)

Traffic data – Traffic data qualifies as personal data. Providers of telecommunication services may collect and use the following traffic data to the following extent:

• the number or other identification of the lines in question or of the terminal;
• authorisation codes, additionally the card number when customer cards are used;
• location data when mobile handsets are used;
• the beginning and end of the connection, indicated by date and time and, where relevant to the charges, the volume of data transmitted;
• the telecommunications service used by the user; or
• the termination points of fixed connections, the beginning and end of their use, indicated by date and time and, where relevant to the charges, the volume of data transmitted.

Any other traffic data required for setup and maintenance of the telecommunications connection and for billing purposes.

Stored traffic data may be used after the termination of a connection only where required to set up a further connection, for billing purposes or in case the user has requested a connection overview.

Otherwise, traffic data must be erased by the service provider without undue delay following termination of the connection.

Location Data – Location Data qualifies as personal data. This data may only be processed as required for the provision of requested services and is subject to prior information of the user. For all other purposes, the user's informed consent must be obtained. According to Section 4a BDSG, 13 German Telemdia Act ("TMG") this means that:

• the user's consent must be intentional, informed and clear. For this purpose the user must be informed on the type, the scope, the location and the purpose of data collection, processing and use including any forwarding of data to third parties;
• the user's consent must be recorded properly ;
• the user must be able to access the content of his consent declaration any time. It is sufficient that such information are provided upon the users' request; and
• the user's consent must be revocable at all times with effect for the future.

ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)

Users must always be informed on the use of cookies in a privacy notice. Cookies may generally be used if they are required in order to perform the services requested by the user. Otherwise, users must be provided with an opt-out mechanism. For this purpose, information on the use of cookies together with a link on how to adjust browser settings in order to prevent future use is sufficient.

Germany has not yet implemented the e-privacy directive. It is currently unclear when this will happen. It therefore remains to be seen whether it would also be sufficient to link the information about processing of personal data and technical measures to the browser settings or whether an active opt-in, e.g. by clicking on a pop-up screen will be required in the future.

Different rules apply in the case of tracking technologies which collect and store a user's IP address. Since IP addresses qualify as personal data, their processing for tracking and marketing services requires active opt-in consent.

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