Data Protected - Germany
Last updated June 2018
General | Data Protection Laws
National Supervisory Authority
Scope of Application
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Transfer of Personal Data to Third Countries
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General | Data Protection Laws
General data protection laws
The General Data Protection Regulation (EU) (2016/679)(“GDPR”).
Germany adapted the Federal Data Protection Act (“FDPA”) to the provisions of the GDPR in June 2017 (the “new FDPA”). The adaption of various sectoral and state laws, such as the German Social Code and the majority of State Data Protection Acts, is still pending.
Entry into force
The GDPR applies from 25 May 2018.
National Supervisory Authority
Details of the competent national supervisory authority
There are 18 different federal and regional data protection authorities as well as further supervisory bodies responsible for monitoring the implementation of data protection.
Under the new FDPA, these bodies will continue to act as the supervisory authorities in Germany.
The Federal Commissioner will represent Germany on European Data Protection Board. The head of the supervisory authority of one Land will be elected to serve as the representative’s deputy.
Notification or registration scheme and timing
There is no obligation to notify regulators of any processing under the GDPR.
Exemptions to notification
Scope of Application
What is the territorial scope of application?
The GDPR applies to the processing of personal data in context of the establishment of a controller or processor in the EU.
It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.
Is there a concept of a controller and processor?
Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.
Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited.
Are both manual and electronic records subject to data protection legislation?
Yes. The GDPR applies to both electronic records and structured hard copy records.
Are there any national derogations?
The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.
The new FDPA contains a number of additional national derogations, including for employment, science, statistics and secrecy obligations.
What is personal data?
Personal data is information relating to an identified or identifiable natural person.
This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as IP addresses and cookie identifiers.
Is information about legal entities personal data?
No. However, information about sole traders and partnerships is likely to be personal data.
What are the rules for processing personal data?
All processing of personal data must comply with all six general data quality principles. Personal data must be: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) kept secure.
The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.
These rules are almost identical to the core requirements for processing personal data in the Data Protection Directive.
Are there any formalities to obtain consent to process personal data?
Obtaining consent will become much harder under the GDPR.
To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.
In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials.
The Article 29 Working Party has issued Guidelines on Consent (WP259).
Are there any special rules when processing personal data about children?
Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.
In Germany, the age at which a child can provide a valid consent will remain at 16 years old.
What is sensitive personal data?
Sensitive personal data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.
The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.
Are there additional rules for processing sensitive personal data?
Sensitive personal data may only be processed if a condition for processing sensitive personal data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the field of employment law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.
The new FDPA provides further detail about these processing conditions. For instance, the processing of sensitive personal data is permissible if necessary for the assessment of the working capacity of the employee or pursuant to the data subject’s contract with a health professional. In these cases, “appropriate and specific measures”, including pseudonymization and encryption of personal data, must be taken to safeguard the interests of the data subject.
Are there additional rules for processing information about criminal offences?
It is only possible to process information about criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law.
According to the new FDPA, employers may process such data where necessary in the employment context.
Are there any formalities to obtain consent to process sensitive personal data?
Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.
Data Protection Officers
When must a data protection officer be appointed?
Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing sensitive personal data on a large scale (including processing information about criminal offences).
Data protection officers must also be appointed where required by national law. The new FDPA contains an additional mandatory obligation for non-public bodies if either: (i) at least ten persons are permanently involved in the automated processing of personal data; or (ii) in case of particularly hazardous processing situations (e.g. where a data protection impact assessment is required).
What are the duties of the data protection officer?
The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management.
The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).
Accountability and Privacy Impact Assessments
Is there a general accountability obligation?
The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.
Are privacy impact assessments mandatory?
A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing sensitive personal data on a large scale; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV).
The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above.
In Germany, various supervisory authorities have drawn up a list of “high processing”. Those lists are broadly similar and cover a wide range of processing activities from the operation of a dating website to big data analytics.
Rights of Data Subjects
A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.
The Article 29 Working Party has issued Guidelines on Transparency (WP260).
Information must be written in an “intelligible” form using “clear and plain language”. There is no explicit obligation to provide this information in German. However, there is a risk that an information in English may not be considered intelligible.
Rights to access information
Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex.
Rights to data portability
Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.
The Article 29 Working Party has issued Guidelines on data portability (WP242).
Right to be forgotten
A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data.
Objection to direct marketing
A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes the processing of their personal data for profiling purposes.
The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.
Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).
Security requirements in order to protect personal data
The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.
In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Specific rules governing processing by third party agents (processors)
A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.
The controller must have written contracts with its processor containing the enhanced processor clauses.
Notice of breach laws
A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.
The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).
Specific notice of breach laws apply to the electronic communications sector under the Privacy and Electronic Communications Directive.
Moreover, controllers in certain sectors may be required to inform sectoral regulators of any breach. For example, operators of critical infrastructures (e.g. in the field of energy, information technology and telecommunications) may be required to inform the Federal Office for Information Security of certain disruptions of their information technology systems.
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. Transfers can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (ii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.
Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.
The position is broadly the same as under the Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.
The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).
Notification and approval of national regulator (including notification of use of Model Contracts)
In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer.
For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.
Use of binding corporate rules
The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority that will cover transfers from anywhere in the EU.
In Germany, the supervisory authorities have approved binding corporate rules from BMW, Continental Group, Deutsche Post DHL, Deutsche Telekom, Glesecke & Devrient, Osram, Siemens Group and Simon-Kucher & Partners.
The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.
A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.
The Article 29 Working Party has issued Guidelines on administrative fines (WP253).
Due to the increased sanctions introduced in the GDPR, significantly higher fines are expected in the future. Changes in enforcement practice will also result from the fact that parts of the German Administrative Offense Act will no longer be applicable under the GDPR. Any infringement by any person permitted to act on behalf of the undertaking will be considered an own infringement of the undertaking, whereas only unlawful acts of legal representatives, proprietors or executives could be attributed to the legal person in the past.
The new FDPA makes it a crime to: (i) transfer personal data which are not publicly accessible of a large number of people to a third party or otherwise make them accessible for commercial purposes; or (ii) fraudulently procure or process non-publicly accessible personal data without authorization in return for payment or with the intention of enriching oneself or someone else or harming someone. These offences are punishable with a fine or imprisonment of up to three years.
Data subjects have a right to compensation in respect of material and non-material damage.
Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing.
In Germany, there is no current enforcement practice in relation to the GDPR. However, the enforcement of the current law is instructive.
With respect to any information about investigations and prosecutions in Germany, two things should be noted: (i) reliable information is very hard to obtain. This is due to the fact that in Germany there are several responsible authorities acting independently (please see the section entitled “Details of the competent national regulatory authority” above). In addition, the reports published by the various data protection authorities do not contain details of penalties imposed or the facts of the relevant cases; (ii) in Germany there is a distinction between criminal sanctions (Straftaten) and administrative fines (Ordnungswidrigkeiten) both of which are applicable in relation to data protection infringements.
So far, data protection breaches have been punished by a fine of up to EUR 50,000 per breach or, in certain cases, up to EUR 300,000 per breach. The highest fine ever imposed in Germany due to non-compliance with data protection law was EUR 1,123,503.50, imposed on Deutsche Bahn AG in October 2009.
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The German Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb) (the “UCA”) dated 3 July 2004 and the revised German Telecommunications Act (Telekommunikationsgesetz) (the “TA”) dated 22 June 2004 (with the TA being applicable only to telecommunications service providers in addition to the UCA) both implemented Article 13 of the Privacy and Electronic Communications Directive. These rules will, of course, be replaced by the proposed Regulation on Privacy and Electronic Communications in due course.
Conditions for direct marketing by e-mail to individual subscribers
Direct marketing via e-mail principally requires the prior explicit consent of the recipient.
Conditions for direct marketing by e-mail to corporate subscribers
Direct marketing via e-mail principally requires the prior explicit consent of the recipient. The Federal Court of Justice confirmed that a single unsolicited e-mail sent to a corporate subscriber infringes the applicable law (Federal Court of Justice, file number: I ZR 218/07).
Exemptions and other issues
The similar products and services exemptions apply.
The UCA also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; or (ii) if an opt-out address is not provided.
The sender must also include the eCommerce information.
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
Individual calls (without the use of automated calling systems) to individual subscribers who are consumers for the purposes of direct marketing are subject to the explicit prior consent of the subscriber.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
Individual calls to corporate subscribers (and individuals who are not acting in their capacity as consumers) are only possible with their explicit or implied consent. Hence, in contrast to calls vis-à-vis consumers, implied consent is sufficient. However, German case law indicates that such an implied consent is subject to quite strict requirements.
Exemptions and other issues
No exemptions apply.