HEUSSEN Rechtsanwaltsgesellschaft mbH

 

The following law(s) specifically govern personal data / information:

Germany is subject to the European GDPR and further regulations in the BDSG (Bundesdatenschutzgesetz / Federal Data Protection Law). There are also specific provisions regarding data protection in many sector-specific laws, such as the TKG ( Telecommunications Law) or the SGB V (Social Law V – Statutory Health Insurance)

 

The key data protection principles in this jurisdiction are:

  • Lawful basis for processing
  • The GDPR provides an exhaustive list of legal bases on which personal data may be processed:

    1. consent of the data subject for one or more specific purposes;
    2. contractual necessity;
    3. compliance with a legal obligation of the controller to perform the relevant processing;
    4. protection of the vital interests of the data subject or of another natural person;
    5. performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; or
    6. legitimate interests (i.e. the processing is necessary for the purposes of legitimate interests pursued by the controller, except where the controller’s interests are overridden by the interests, fundamental rights or freedoms of the affected data subjects).

    The processing of sensitive personal data requires stronger grounds and is only permitted under certain conditions, of which the most relevant are:

    1. explicit consent of the affected data subject;
    2. the processing is necessary in the context of employment or social security law; or
    3. the processing is necessary for the establishment, exercise or defence of legal claims.

  • Transparency
  • Personal data must be processed lawfully, fairly and in a transparent manner. Regarding the processing of personal data, controllers are obliged to provide certain information to data subjects. Such information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.

  • Purpose limitation
  • Personal data may only be collected for specified, explicit and legitimate purposes and must not be further processed in a manner that is incompatible with those purposes.


  • Data minimisation
  • The processing of personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which those data are processed.


  • Accuracy
  • Personal data must be accurate and, where necessary, kept up to date.


  • Storage limitation
  • Personal data must be stored in a form that permits identification of data subjects for no longer than it is necessary for the purposes for which the personal data was initially collected.


  • Integrity and confidentiality
  • Personal data must be processed in a manner that ensures appropriate security of those data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.


  • Accountability
  • The controller is responsible for processing of data in accordance with the GDPR. In particular, the controller is obliged to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in compliance with the GDPR.


 

The supervisory authority / regulator in charge of data protection is:

Germany has 18 supervisory authorities in total: One for each of the 16 federal states, with Bavaria having 2, and the Federal Data Protection officer. The state authorities have jurisdiction over entities headquartered in its state; the Federal Data Protection Officer supervises the federal agencies and telecommunication providers. These authorities have also formed a joint board, the DSK (Datenschutzkonferenz / Data Protection Conference) that issues opinions and other statements that the authorities agree on.

 

Is there a requirement to register with a supervisory authority / regulator?

No, a registration of a company is not necessary. However, Germany requires all companies with more than 20 employees tasked with data processing to have a Data Protection Officer, and such a DPO must be registered with the relevant supervisory authority. Only contact details of the company and the DPO have to be provided (this is usually done by the DPO).

 

Is there a requirement to notify the supervisory authority / regulator?

No, a notification to a supervisory authority before executing processing activities is no longer necessary. This used to be the case in Germany under the old BDSG, but registration is no longer a requirement since the GDPR exists.

 

Is it possible to register with / notify the supervisory authority / regulator online?

N/A

 

The key data subject rights under the data protection laws of this jurisdiction are:

  • Right to information
  • Pursuant to Articles 13 and 14 GDPR, data subjects have the right to be provided with information on the identity of the controller, the reasons for processing their personal data and other relevant information necessary to ensure the fair and transparent processing of personal data.


  • Right of access
  • A data subject has the right to obtain from a controller certain information in respect of the data subject’s personal data as listed in Article 15 GDPR.

    Additionally, the data subject may request a copy of the personal data being processed.


  • Right to rectification of errors
  • Pursuant to Article 16 GDPR, data subjects have the right to rectification of inaccurate personal data.


  • Right to deletion/right to be forgotten
  • Data subjects have the right to erasure of their personal data (the “right to be forgotten”) if one of the reason as listed in Article 17 GDPR apply.


  • Right to restriction of processing
  • Data subjects have the right to request restriction of the processing of personal data, which means that the data may only be processed for limited purposes as defined in Article 18 GDPR.


  • Right to data portability
  • Data subjects have a right to receive a copy of their personal data in a commonly used machine-readable format, and transfer their personal data from one controller to another or have the data transmitted directly between controllers (Article 20 GDPR).


  • Right to object to processing
  • Data subjects have the right to object, on grounds relating to their particular situation, to the processing of personal data where the basis for that processing is either public interest (Article 6 para 1(e) GDPR) or legitimate interest of the controller (Article 6 para 1(f) GDPR). The controller must cease such processing unless it demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the relevant data subject or requires the data in order to establish, exercise or defend legal rights.

    Data subjects have the right to object to the processing of personal data for marketing purposes, including profiling.


  • Right to withdraw consent
  • A data subject has the right to withdraw their consent at any time (Article 7 para 3 GDPR). The withdrawal of consent does not affect the lawfulness of processing based on consent before the withdrawal.


  • Right to complain to the relevant data protection authority(ies)
  • Data subjects have the right to lodge complaints concerning the processing of their personal data with the competent data protection authority.


  • Right not to be subject to automated individual decision-making
  • Under certain circumstances, data subjects have the right not to be subject to a decision based solely on automated processing of data (including profiling), which produces legal effects or similarly significantly effects for the data subject (Article 22 GDPR).



 

Is there a requirement to appoint a data protection officer (or equivalent)?

Yes, whenever this is necessary due to the extent of the processing or whenever a company has at least 20 employees (disregarding employee status like full / part-time employment) permanently assigned to executing data processing of any kind.

 

Do data protection/ privacy impact assessments need to be carried out in certain circumstances?

Yes; if a type of processing is likely to result in a high risk for the rights and freedoms of natural persons, a data protection impact assessment is required. This is always a given in the following circumstances:

  • Systematic, extensive evaluation of personal aspects (including profiling)
  • Large-scale processing of sensitive categories of data
  • Systematic monitoring of public spaces

The German Supervisory Authorities have determined that a DPIA is necessary in 16 particular use cases. These partially overlap with the circumstances given above, but extend and specify them as well.

In addition, a Data Protection Impact Assessment (DPIA) is necessary whenever nature, scope, context, purpose of the processing or usage of new technologies indicate a high risk for the rights of natural persons.

 

Does this jurisdiction have any specific data breach notification requirements?

Yes. In the event of a data breach, the competent supervisory authority for the federal state needs to be notified within 72 hours. In the event of a data breach that poses severe risks to the rights and interests of the data subject, the data subject must also be notified without undue delay. The content of the notification is specified in Art. 33 section 3 GDPR.

 

The following restrictions apply to the international transfer of personal data / information:

Transfer of data within the EU and the EEA is not specifically restricted. Transfers to countries outside of it, however, must utilize one of several specific transfer tools. The most relevant are:

  1. The parties (exporter and importer) agree on the standard contractual clauses proposed by the European Commission (which are currently being revised);
  2. Parties that are part of a conglomerate may issue Binding Corporate Rules and get them ratified by the competent supervisory authority;
  3. Adequacy decision: Some countries are subject to an adequacy decision by the European Commission which elevates it to the status of a member state for data export purposes.

The CJEU has recently ruled that depending on the country, additional safeguards may be necessary in addition to these transfer tools (most prominently for the USA).

 

Do the data protection laws in this jurisdiction have “extra-territorial effect” (i.e. do they apply to organisations outside this jurisdiction)?

Not per se. However, Art. 3 section 2 GDPR declares that a company processing data of persons within the EU are subject to the GDPR if they either offer goods or services to natural persons within the EU or monitor the behaviour of them as far as it takes place within the EU.

 

The following rules specifically deal with marketing:

The GDPR limits many marketing practices based on the usage of personal data, such as creating personalized advertising profiles, in various ways, e.g. by usually requiring consent for this usage. In addition, the German § 7 UWG (Law against Unfair Competitive Practices) forbids marketing calls to consumers without explicit consent given, digital advertising messages sent without explicit consent and any other marketing practices considered to be unreasonable harassment of the consumer.

 

Do different rules apply to business-to-business and business-to-consumer marketing?

Yes, the protections of consumers are significantly stronger. e.g., data protection laws for the most part only apply to personal data, not business data. However, the GDPR can still be relevant in B2B-dealings (the E-Mail address of a contact person in a different company is still personal data of that person).

In German law, it is also possible for one company to sue another to cease and desist marketing measures that are not compliant with the law. Currently, a decision of whether data protection law can be a base of such a cease-and-desist-claim is pending before the CJEU. The German courts are split on the issue.

 

The following rules specially deal with electronic marketing (for example, by email, text message, WhatsApp message, online ads etc):

Yes, see above. German law considers all forms of marketing by electronic messaging (whether E-Mail, WhatsApp or Push-Messages) to be equivalent and requires consent (with narrow exceptions for implied consent) for them. Online ads can be shown without consent, but personalization will often require consent, depending on how data is gathered and used.

 

The following rules specifically deal with cookies:

Germany is subject only to the provisions on cookies from European law (Directive 2002/58 or EU ePrivacy Directive).

Pursuant to Article 5 of the EU ePrivacy Directive, the storage of cookies (or other data) on an end user’s device requires prior consent.

Article 5 of the EU ePrivacy Directive, distinguishes between:

  1. cookies serving the sole purpose of carrying out the transmission of a communication via an electronic communications network or necessary to provide an “information society service” requested by the subscriber or user, which do not require the consent of the user, and
  2. any other cookies, which require the consent of the user.

Pursuant to legal prerequisites established by the CJEU (Planet49, C-673/17), consent to the use of cookies containing personal data as described has to be explicit opt-in consent. This decision is confirmed by the German Federal Court of Justice.

 

The consequences of non compliance with data protections laws (including marketing laws) are:

The legal ceiling for fines for noncompliance with data protection laws is unusually high (up to 4 % of the annual revenue of a company found to be noncompliant). In practice, the publicly known fees for large actors typically reach a range of 1-2 million Euros, with the largest fines reaching 10 million Euros. It should be noted that the German courts have lowered every fine reaching these heights to a fraction whenever the subject company litigated.

Smaller entities typically face fines in the range of 1.000 – 100.000 Euros.

Overall, the fine depends on the size of the company and the severity of the noncompliance.

 

In broad terms, multinational organisations should be aware of the following key factors if they process personal data / information from individuals within this jurisdiction, without being located there:

The German Supervisory Authorities are, compared to many other Supervisory Authorities, unusually active and take an aggressive stance against companies they perceive as noncompliant.

Since the 18 different Supervisory Authorities have significantly diverging opinions on some matters, multinationals expanding into Germany should take care about which state they want to settle in and pay particular attention to the competent authorities' issued opinions.

Multinationals should also be aware that if employee data is processed in a way that may be used as a monitoring system (such as in performance analytics software), the Works Council (obligatory employee representation) has a right to audit the processing and may block its implementation.

 

Multinational organisations should be aware of the following upcoming data protection developments:

Certain Supervisory Authorities and firms report that the German Supervisory Authorities have put their focus on online consent forms and are actively requesting information about related business processes from companies in their jurisdictions.

The exit of the UK from the EU might complicate data transfers, taking into account that the adequacy decision proposed by the European Commission was rejected by the European Parliament on May 21st, 2021.

 

 

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Contact a member firm:
Robert Faußner
HEUSSEN Rechtsanwaltsgesellschaft mbH
Germany


Mark Münch
HEUSSEN Rechtsanwaltsgesellschaft mbH
Germany