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The General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) is a European Union law which entered into force in 2016 and, following a two-year transition period, became directly applicable law in all Member States of the European Union on May 25, 2018, without requiring implementation by the EU Member States through national law.
A 'Regulation' (unlike the Directive which it replaced) is directly applicable and has consistent effect in all Member States. However, there remain more than 50 areas covered by GDPR where Member States are permitted to legislate differently in their own domestic data protection laws, and there continues to be room for different interpretation and enforcement practices among the Member States.
Primarily, the application of the GDPR turns on whether an organization is established in the EU. An 'establishment' may take a wide variety of forms, and is not necessarily a legal entity registered in an EU Member State.
However, the GDPR also has extra-territorial effect. An organization that it is not established within the EU will still be subject to the GDPR if it processes personal data of data subjects who are in the Union where the processing activities are related "to the offering of goods or services" (Article 3(2)(a)) (no payment is required) to such data subjects in the EU or "the monitoring of their behaviour" (Article 3(2)(b)) as far as their behaviour takes place within the EU.
Germany has adjusted the German legal framework to the GDPR by passing the new German Federal Data Protection Act (Bundesdatenschutzgesetz – ‘BDSG'). The BDSG was officially published on July 5, 2017 and came into force together with the GDPR on May 25, 2018. The purpose of the BDSG is especially to make use of the numerous opening clauses under the GDPR which enable Member States to specify or even restrict the data processing requirements under the GDPR.
Find the English version here.
"Personal data" is defined as "any information relating to an identified or identifiable natural person" (Article 4). A low bar is set for "identifiable" – if the natural person can be identified using “all means reasonably likely to be used” (Recital 26) the information is personal data. A name is not necessary either – any identifier will do, such as an identification number, phone number, location data or other factors which may identify that natural person.
Online identifiers are expressly called out in Recital 30, with IP addresses, cookies and RFID tags all listed as examples.
The GDPR creates more restrictive rules for the processing of "special categories" (Article 9) of personal data (including data relating to race, religion, sexual life, data pertaining to health, genetics and biometrics) and personal data relating to criminal convictions and offences (Article 10).
The GDPR is concerned with the "processing" of personal data. Processing has an extremely wide meaning, and includes any set of operations performed on data, including the mere storage, hosting, consultation or deletion of the data.
Personal data may be processed by either a "controller" or a "processor". The controller is the decision maker, the person who "alone or jointly with others, determines the purposes and means of the processing of personal data" (Article 4). The processor "processes personal data on behalf of the controller", acting on the instructions of the controller. In contrast to the previous law, the GDPR imposes direct obligations on both the controller and the processor, although fewer obligations are imposed on the processor.
The "data subject" is a living, natural person whose personal data are processed by either a controller or a processor.
The definitions are the same as in Art. 4 GDPR. Beyond that, the BDSG (New) contains further definitions for 'public bodies of the Federation', 'public bodies of the Länder' and 'private bodies' in Sec. 2 BDSG (New).
Enforcement of the GDPR is the prerogative of data protection regulators, known as supervisory authorities (for example, the Cnil in France or the ICO in the UK). The European Data Protection Board (the replacement for the so-called Article 29 Working Party) is comprised of delegates from the supervisory authorities, and monitors the application of the GDPR across the EU, issuing guidelines to encourage consistent interpretation of the Regulation.
The GDPR creates the concept of "lead supervisory authority". Where there is cross-border processing of personal data (ie, processing taking place in establishments of a controller or processor in multiple Member States, or taking place in a single establishment of a controller or processor but affecting data subjects in multiple Member States), then the starting point for enforcement is that controllers and processors are regulated by and answer to the supervisory authority for their main or single establishment, the so-called "lead supervisory authority" (Article 56(1)).
However, the lead supervisory authority is required to cooperate with all other "concerned" authorities, and a supervisory authority in another Member State may enforce where infringements occur on its territory or substantially affect data subjects only in its territory (Article 56(2)).
The concept of lead supervisory authority is therefore of somewhat limited help to multinationals.
Germany does not have one central Data Protection Authority but a number of different Authorities for each of the 16 German states (Länder) that are responsible for making sure that data protection laws and regulations are complied with. In addition the German Federal Commissioner for Data Protection and Freedom of Information (Bundesbeauftragte für Datenschutz und Informationsfreiheit – ‘BfDI’) is the Data Protection Authority for telecommunication service providers and represents Germany in the European Data Protection Board. To ensure that all the Authorities have the same approach a committee consisting of members of all Authorities has been established – the 'Data Protection Conference' (Datenschutzkonferenz 'DSK'). The coordination mechanism between the German Authorities mirrors the consistency mechanism under the GDPR.
There are no EU-wide systems of registration or notification and Recital 89 of the GDPR seeks to prohibit indiscriminate general notification obligations. However, Member States may impose notification obligations for specific activities (eg, processing of personal data relating to criminal convictions and offences). The requirement to consult the supervisory authority in certain cases following a data protection impact assessment (Article 36) constitutes a notification requirement. In addition, each controller or processor must communicate the details of its data protection officer (where it is required to appoint one) to its supervisory authority (Article 37(7)).
In many ways, external accountability to supervisory authorities via registration or notification is superseded in the GDPR by rigorous demands for internal accountability. In particular, controllers and processors are required to complete and maintain comprehensive records of their data processing activities (Article 30), which must contain specific details about personal data processing carried out within an organisation and must be provided to supervisory authorities on request. This is a sizeable operational undertaking.
There are no registration requirements in Germany.
Each controller or processor is required to appoint a data protection officer if it satisfies one or more of the following tests:
- it is a public authority;
- its core activities consist of processing operations which, by virtue of their nature, scope or purposes, require regular and systemic monitoring of data subjects on a large scale; or
- its core activities consist of processing sensitive personal data on a large scale.
Groups of undertakings are permitted to appoint a single data protection officer with responsibility for multiple legal entities (Article 37(2)), provided that the data protection officer is easily accessible from each establishment (meaning that larger corporate groups may find it difficult in practice to operate with a single data protection officer).
DPOs must have "expert knowledge" (Article 37(5)) of data protection law and practices, though it is possible to outsource the DPO role to a service provider (Article 37(6)).
Controllers and processors are required to ensure that the DPO is involved "properly and in a timely manner in all issues which relate to the protection of personal data" (Article 38(1)), and the DPO must directly report to the highest management level, must not be told what to do in the exercise of his or her tasks and must not be dismissed or penalised for performing those tasks (Article 38(3)).
The specific tasks of the DPO, set out in GDPR, include (Article 39):
- to inform and advise on compliance with GDPR and other Union and Member State data protection laws;
- to monitor compliance with the law and with the internal policies of the organization including assigning responsibilities, awareness raising and training staff;
- to advise and monitor data protection impact assessments where requested; and
- to cooperate and act as point of contact with the supervisory authority.
This is a good example of an area of the GDPR where Member State gold plating laws are likely. For example, German domestic law has set the bar for the appointment of DPOs considerably lower than that set out in the GDPR.
The threshold to designate a Data Protection Officer (DPO) is much lower in the BDSG. The controller and processor has to designate a DPO if they constantly employ as a rule at least ten persons dealing with the automated processing of personal data, Sec. 38 (1) first sentence BDSG. The meaning of ‘automated processing’ is interpreted broadly by the German Authorities. It basically covers every employee who works with a computer.
If the threshold of 10 persons is not reached, Sec. 38 (1) second sentence BDSG regulates in addition to Art. 37 GDPR, that a DPO has to be designated in case the controller or processor undertakes processing subject to a data protection impact assessment pursuant to Art. 35 GDPR, or if they commercially process personal data for the purpose of transfer, of anonymized transfer or for purposes of market or opinion research.
Furthermore, a dismissal protection for the DPO is provided in Sec. 38 (2) in conjunction with Sec. 6 (4) BDSG. The dismissal of the data protection officer is only permitted in case there are facts which give the public body just cause to terminate without notice. After the activity as data protection officer has ended, the data protection officer may not be terminated for a year following the end of appointment, unless the public body has just cause to terminate without notice.
Additionally, Sec. 38 (2) in conjunction with Sec. 6 (5) and (6) BDSG stipulates that the data protection officer shall be bound by secrecy concerning the identity of data subjects and concerning circumstances enabling data subjects to be identified, unless they are released from this obligation by the data subject. Moreover, the right to refuse to give evidence of a head of a public body or a person employed by such a body also applies for the DPO.
Moreover, the German Authorities require that the DPO speaks the language of the competent Authorities and data subjects, ie German, or at least that instant translation is ensured.
Data Protection Principles
Controllers are responsible for compliance with a set of core principles which apply to all processing of personal data. Under these principles, personal data must be (Article 5):
- processed lawfully, fairly and in a transparent manner (the "lawfulness, fairness and transparency principle");
- collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes (the "purpose limitation principle");
- adequate, relevant and limited to what is necessary in relation to the purpose(s) (the "data minimization principle");
- accurate and where necessary kept up-to-date (the "accuracy principle");
- kept in a form which permits identification of data subjects for no longer than is necessary for the purpose(s) for which the data are processed (the "storage limitation principle"); and
- processed in a manner that ensures appropriate security of the personal data, using appropriate technical and organizational measures (the "integrity and confidentiality principle").
The controller is responsible for and must be able to demonstrate compliance with the above principles (the "accountability principle"). Accountability is a core theme of the GDPR. Organizations must not only comply with the GDPR but also be able to demonstrate compliance perhaps years after a particular decision relating to processing personal data was taken. Record-keeping, audit and appropriate governance will all form a key role in achieving accountability.
Legal Basis under Article 6
In addition, in order to satisfy the lawfulness principle, each use of personal data must be justified by reference to an appropriate basis for processing. The legal bases (also known lawful bases or lawful grounds) under which personal data may be processed are (Article 6(1)):
- with the consent of the data subject (where consent must be "freely given, specific, informed and unambiguous", and must be capable of being withdrawn at any time);
- where necessary for the performance of a contract to which the data subject is party, or to take steps at the request of the data subject prior to entering into a contract;
- where necessary to comply with a legal obligation (of the EU) to which the controller is subject;
- where necessary to protect the vital interests of the data subject or another person (generally recognized as being limited to 'life or death' scenarios, such as medical emergencies);
- where necessary for the performance of a task carried out in the public interest, or in the exercise of official authority vested in the controller; or
- where necessary for the purposes of the legitimate interests of the controller or a third party (which is subject to a balancing test, in which the interests of the controller must not override the interests or fundamental rights and freedoms of the data subject. Note also that this basis cannot be relied upon by a public authority in the performance of its tasks).
Special Category Data
Processing of special category data is prohibited (Article 9), except where one of the following exemptions applies (which, in effect, operate as secondary bases which must be established for the lawful processing of special category data, in addition to an Article 6 basis):
- with the explicit consent of the data subject;
- where necessary for the purposes of carrying out obligations and exercising rights under employment, social security and social protection law or a collective agreement;
- where necessary to protect the vital interests of the data subject or another natural person who is physically or legally incapable of giving consent;
- in limited circumstances by certain not-for-profit bodies;
- where processing relates to the personal data which are manifestly made public by the data subject;
- where processing is necessary for the establishment, exercise or defence of legal claims or where courts are acting in their legal capacity;
- where necessary for reasons of substantial public interest on the basis of Union or Member State law, proportionate to the aim pursued and with appropriate safeguards;
- where necessary for preventative or occupational medicine, for assessing the working capacity of the employee, medical diagnosis, provision of health or social care or treatment of the management of health or social care systems and services;
- where necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of health care and of medical products and devices; or
- where necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with restrictions set out in Article 89(1).
Member States are permitted to introduce domestic laws including further conditions and limitations for processing with regard to processing genetic data, biometric data and health data.
Criminal Convictions and Offences data
Processing of personal data relating to criminal convictions and offences is prohibited unless carried out under the control of an official public authority, or specifically authorized by Member State domestic law (Article 10).
Processing for a Secondary Purpose
Increasingly, organisations wish to 're-purpose' personal data - ie, use data collected for one purpose for a new purpose which was not disclosed to the data subject at the time the data were first collected. This is potentially in conflict with the core principle of purpose limitation; to ensure that the rights of data subjects are protected. The GDPR sets out a series of factors that the controller must consider to ascertain whether the new process is compatible with the purposes for which the personal data were initially collected (Article 6(4)). These include:
- any link between the original purpose and the new purpose
- the context in which the data have been collected
- the nature of the personal data, in particular whether special categories of data or data relating to criminal convictions are processed (with the inference being that if they are it will be much harder to form the view that a new purpose is compatible)
- the possible consequences of the new processing for the data subjects
- the existence of appropriate safeguards, which may include encryption or pseudonymization.
If the controller concludes that the new purpose is incompatible with the original purpose, then the only bases to justify the new purpose are consent or a legal obligation (more specifically an EU or Member State law which constitutes a necessary and proportionate measure in a democratic society).
Transparency (Privacy Notices)
The GDPR places considerable emphasis on transparency, ie, the right for a data subject to understand how and why his or her data are used, and what other rights are available to data subjects to control processing. The presentation of granular, yet easily accessible, privacy notices should, therefore, be seen as a cornerstone of GDPR compliance.
Various information must be provided by controllers to data subjects in a concise, transparent and easily accessible form, using clear and plain language (Article 12(1)).
The following information must be provided (Article 13) at the time the data are obtained:
- the identity and contact details of the controller;
- the data protection officer's contact details (if there is one);
- both the purpose for which data will be processed and the legal basis for processing, including, if relevant, the legitimate interests for processing;
- the recipients or categories of recipients of the personal data;
- details of international transfers;
- the period for which personal data will be stored or, if that is not possible, the criteria used to determine this;
- the existence of rights of the data subject including the right to access, rectify, require erasure, restrict processing, object to processing and data portability;
- where applicable, the right to withdraw consent, and the right to complain to supervisory authorities;
- the consequences of failing to provide data necessary to enter into a contract;
- the existence of any automated decision making and profiling and the consequences for the data subject; and
- in addition, where a controller wishes to process existing data for a new purpose, they must inform data subjects of that further processing, providing the above information.
Somewhat different requirements apply (Article 14) where information has not been obtained from the data subject.
Rights of the Data Subject
Data subjects enjoy a range of rights to control the processing of their personal data, some of which are very broadly applicable, whilst others only apply in quite limited circumstances. Controllers must provide information on action taken in response to requests within one calendar month as a default, with a limited right for the controller to extend this period thereby a further two months where the request is onerous.
Right of access (Article 15)
A data subject is entitled to request access to and obtain a copy of his or her personal data, together with prescribed information about the how the data have been used by the controller.
Right to rectify (Article 16)
Data subjects may require inaccurate or incomplete personal data to be corrected or completed without undue delay.
Right to erasure ('right to be forgotten') (Article 17)
Data subjects may request erasure of their personal data. The forerunner of this right made headlines in 2014 when Europe’s highest court ruled against Google (Judgment of the CJEU in Case C-131/12), in effect requiring Google to remove search results relating to historic proceedings against a Spanish national for an unpaid debt on the basis that Google as a data controller of the search results had no legal basis to process that information.
The right is not absolute; it only arises in quite a narrow set of circumstances, notably where the controller no longer needs the data for the purposes for which they were collected or otherwise lawfully processed, or as a corollary of the successful exercise of the objection right, or of the withdrawal of consent.
Right to restriction of processing (Article 18)
Data subjects enjoy a right to restrict processing of their personal data in defined circumstances. These include where the accuracy of the data is contested; where the processing is unlawful; where the data are no longer needed save for legal claims of the data subject, or where the legitimate grounds for processing by the controller are contested.
Right to data portability (Article 20)
Where the processing of personal data is justified either on the basis that the data subject has given his or her consent to processing or where processing is necessary for the performance of a contract, then the data subject has the right to receive or have transmitted to another controller all personal data concerning him or her in a structured, commonly used and machine-readable format (eg, commonly used file formats recognized by mainstream software applications, such as .xsl).
Right to object (Article 21)
Data subjects have the right to object to processing on the legal basis of the legitimate interests of the data controller or where processing is in the public interest. Controllers will then have to suspend processing of the data until such time as they demonstrate “compelling legitimate grounds” for processing which override the rights of the data subject.
In addition, data subjects enjoy an unconditional right to object to the processing of personal data for direct marketing purposes at any time.
The right not to be subject to automated decision making, including profiling (Article 22)
Automated decision making (including profiling) "which produces legal effects concerning [the data subject] … or similarly significantly affects him or her" is only permitted where:
- necessary for entering into or performing a contract;
- authorized by EU or Member State law; or
- the data subject has given their explicit (ie, opt-in) consent.
Further, where significant automated decisions are taken on the basis of grounds (a) or (c), the data subject has the right to obtain human intervention, to contest the decision, and to express his or her point of view.
The BDSG has additional rules regarding processing of special categories of personal data. Contrary to Art. 9 (1) GDPR, processing of such data is permitted by public and private bodies in some cases, see Sec. 22 (1), 23 (3) BDSG. Also, Sec. 23 BDSG (New) determines cases in which controllers are permitted to process data for a purpose other than the one for which the data were collected.
Section 4 BDSG (New) provides a special rule for video surveillance of publicly accessible areas, which is not applicable. According to the German DPAs as well as the unanimous opinion in German legal literature the provision is generally not compliant with the GDPR and therefore must not be applied due to the general principle of the primacy of Union law. This is based in the argument that the GDPR does not contain any opening clause for deviating from Art. 6 para. 1 lit. f) GDPR with respect to video surveillance.
Furthermore BDSG provides special rules regarding processing for employment-related purposes in Sec. 26 BDSG. The German legislator has made very broad use of the opening clause in Art. 88 (1) GDPR and has basically established an own employee data protection regime. This new rules reflect the current German employee privacy rules which also has the consequence that a set of case law of the German Federal Labour Court (Bundesarbeitsgericht – ‘BAG’) will apply. In case the processing is conducted for employment-related purposes it is subject to Sec. 26 BDSG only and a recourse to the general legal grounds set out in Article 6 GDPR are blocked. Personal data of employees can only be processed in the employment context (setting aside some very special cases under the BDSG when it comes to the assessment of the working capacity of the employee and other handling of special categories data as well as exchange of data with the works council) in these cases:
- The processing is necessary for hiring decisions or, after hiring, for carrying out or terminating the employment contract (Sec. 26 (1) sentence 1 BDSG) (please note that the BAG interprets the predecessor provision broader than Art. 6 (1) (b) GDPR)
- Employees’ personal data may be processed to detect crimes only if there is a documented reason to believe the data subject has committed a crime while employed, the processing of such data is necessary to investigate the crime and is not outweighed by the data subject’s legitimate interest in not processing the data, and in particular the type and extent are not disproportionate to the reason (Sec. 26 (1) sentence 2 BDSG)
- The processing is based on a works council agreement which complies with the requirements set out Art. 88 para. 2 GDPR (Sec. 26 (4) BDSG)
- The processing is based on the written employee consent. A derogation from the written form can apply if a different form is appropriate because of special circumstances. This derogation will most likely never apply in practice. Moreover, the utilization of consent as basis for the processing is particularly problematic in Germany as Sec. 26 (2) BDSG stipulates requirements in addition to Art. 7 GDPR. If personal data of employees are processed on the basis of consent, then the employee’s level of dependence in the employment relationship and the circumstances under which consent was given shall be taken into account in assessing whether such consent was freely given. Consent may be freely given in particular if it is associated with a legal or economic advantage for the employee, or if the employer and employee are pursuing the same interests. The German DPAs interpret this provision in a way that employee consent cannot be used for processing of personal data which directly relates to the employment relationship, but only to supplementary services offered by the employer (eg, private use of company cars or IT equipment, health management or birthday lists).
Transfers of personal data by a controller or a processor to third countries outside of the EU (and Norway, Liechtenstein and Iceland) are only permitted where the conditions laid down in the GDPR are met (Article 44).
The European Commission has the power to make an adequacy decision in respect of a third country, determining that it provides for an adequate level of data protection, and therefore personal data may be freely transferred to that country (Article 45(1)). Currently, the following countries or territories enjoy adequacy decisions: Andorra, Argentina, Canada (with some exceptions), Switzerland, Faroe Islands, Guernsey, Israel, Isle of Man, Jersey, Eastern Republic of Uruguay and New Zealand.
Transfers to third countries are also permitted where appropriate safeguards have been provided by the controller or processor and on condition that enforceable data subject rights and effective legal remedies for the data subject are available. The list of appropriate safeguards includes amongst others binding corporate rules, standard contractual clauses, and the EU-US Privacy Shield Framework. The GDPR has removed the need which existed in some Member States under the previous law to notify and in some cases seek prior approval of standard contractual clauses from supervisory authorities.
The GDPR also includes a list of context specific derogations, permitting transfers to third countries where:
- explicit informed consent has been obtained;
- the transfer is necessary for the performance of a contract or the implementation of pre-contractual measures;
- the transfer is necessary for the conclusion or performance of a contract concluded in the interests of the data subject between the controller and another natural or legal person;
- the transfer is necessary for important reasons of public interest;
- the transfer is necessary for the establishment, exercise or defence of legal claims;
- the transfer is necessary in order to protect the vital interests of the data subject where consent cannot be obtained; or
- the transfer is made from a register which according to EU or Member State law is intended to provide information to the public, subject to certain conditions.
There is also a very limited derogation to transfer where no other mechanism is available and the transfer is necessary for the purposes of compelling legitimate interests of the controller which are not overridden by the interests and rights of the data subject; notification to the supervisory authority and the data subject is required if relying on this derogation.
Transfers demanded by courts, tribunals or administrative authorities of countries outside the EU (Article 48) are only recognized or enforceable (within the EU) where they are based on an international agreement such as a mutual legal assistance treaty in force between the requesting third country and the EU or Member State; a transfer in response to such requests where there is no other legal basis for transfer will infringe the GDPR.
The same applies as in Article 44 et seqq. GDPR.
The GDPR is not prescriptive about specific technical standards or measures. Rather, the GDPR adopts a proportionate, context-specific approach to security. Article 32 states that controllers and processors shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk of the processing. In so doing, they must take account of the state of the art, the costs of implementation, and the nature, scope, context and purposes of processing. A 'one size fits all' approach is therefore the antithesis of this requirement.
However the GDPR does require controllers and processors to consider the following when assessing what might constitute adequate security:
- the pseudonymization and encryption of personal data;
- the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
- 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
- a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
The BDSG has additional rules regarding the processing of special categories of personal data in Sec. 22 (2) BDSG. In case of processing of such data, appropriate and specific measures have to be taken to safeguard the interests of the data subject.
Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, these measures may include in particular the following:
- technical organizational measures to ensure that processing complies with Regulation (EU) 2016/679
- measures to ensure that it is subsequently possible to verify and establish whether and by whom personal data were input, altered or removed
- measures to increase awareness of staff involved in processing operations
- designation of a data protection officer
- restrictions on access to personal data within the controller and by processors
- the pseudonymization of personal data
- the encryption of personal data
- measures to ensure the ability, confidentiality, integrity, availability and resilience of processing systems and services related to the processing of personal data, including the ability to rapidly restore availability and access in the event of a physical or technical incident
- a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing
- specific rules of procedure to ensure compliance with this Act and with the GDPR in the event of transfer or processing for other purposes
The GDPR contains a general requirement for a personal data breach to be notified by the controller to its supervisory authority, and for more serious breaches to also be notified to affected data subjects. A "personal data breach" is a wide concept, defined as any "breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed" (Article 4).
The controller must notify a breach to the supervisory authority without undue delay, and where feasible, not later than 72 hours after having become aware of it, unless the controller determines that the breach is unlikely to result in a risk to the rights and freedoms of natural persons. When the personal data breach is likely to result in a high risk to natural persons, the controller is also required to notify the affected data subjects without undue delay (Article 34).
Where the breach occurs at the level of the processor, it is required to notify the controller without undue delay upon becoming aware of the breach (Article 33(2)).
The notification to the supervisory authority must include where possible the categories and approximate numbers of individuals and records concerned, the name of the organization’s data protection officer or other contact, the likely consequences of the breach and the measures taken to mitigate harm (Article 33(3)).
Controllers are also required to keep a record of all data breaches (Article 33(5)) (whether or not notified to the supervisory authority) and permit audits of the record by the supervisory authority.
The regulations regarding the breach of notification are mainly identical to Art. 33, 34 GDPR.
Sec. 29 (1) BDSG stipulates in addition to the exception in Art. 34 (3) GDPR, the obligation to inform the data subject of a personal data breach according to Art. 34 GDPR shall not apply as far as meeting this obligation would disclose information which by law or by its nature must be kept secret, in particular because of overriding legitimate interests of a third party. By derogation from previous, the data subject pursuant to Article 34 GDPR shall be informed if the interests of the data subject outweigh the interest in secrecy, in particular taking into account the threat of damage.
According to Sec, 43 (3) BDSG, a notification pursuant to Art. 33 GDPR or a communication pursuant to Article 34 (1) GDPR may be used in proceedings pursuant to the Act on Regulatory Offences (Gesetz über Ordnungswidrigkeiten – ‘OWiG’) against the person required to provide a notification or a communication only with the consent of the person obligated to provide a notification or a communication.
The GDPR empowers supervisory authorities to impose fines of up to 4% of annual worldwide turnover, or EUR 20 million (whichever is higher).
It is the intention of the European Commission that fines should, where appropriate, be imposed by reference to the revenue of an economic undertaking rather than the revenues of the relevant controller or processor. Recital 150 of the GDPR states that 'undertaking' should be understood in accordance with Articles 101 and 102 of the Treaty on the Functioning of the European Union, which prohibit anti-competitive agreements between undertakings and abuse of a dominant position. Unhelpfully, the Treaty does not define ‘undertaking’ and the extensive case-law is not entirely straightforward, with decisions often turning on the specific facts of each case. However, in many competition cases, group companies have been regarded as part of the same undertaking. The assessment will turn on the facts of each case, and the first test cases under the GDPR will need to be scrutinised carefully to understand the interpretation of ‘undertaking’. Under EU competition law case-law, there is also precedent for regulators to impose joint and several liability on parent companies for fines imposed on those subsidiaries in some circumstances (broadly where there is participation or control), so-called "look through" liability. Again, it remains to be seen whether there will be a direct read-across of this principle into GDPR enforcement.
Fines are split into two broad categories.
The highest fines (Article 83(5)) of up to EUR 20 million or, in the case of an undertaking, up to 4% of total worldwide turnover of the preceding year, whichever is higher, apply to infringement of:
- the basic principles for processing including conditions for consent;
- data subjects’ rights;
- international transfer restrictions;
- any obligations imposed by Member State law for special cases such as processing employee data; and
- certain orders of a supervisory authority.
The lower category of fines (Article 83(4)) of up to EUR 10 million or, in the case of an undertaking, up to 2% of total worldwide turnover of the preceding year, whichever is the higher, apply to infringement of:
- obligations of controllers and processors, including security and data breach notification obligations;
- obligations of certification bodies; and
- obligations of a monitoring body.
Supervisory authorities are not required to impose fines but must ensure in each case that the sanctions imposed are effective, proportionate and dissuasive (Article 83(1)).
Fines can be imposed in combination with other sanctions.
Investigative and corrective powers
Supervisory authorities also enjoy wide investigative and corrective powers (Article 58) including the power to undertake on-site data protection audits and the power to issue public warnings, reprimands and orders to carry out specific remediation activities.
Right to claim compensation
The GDPR makes specific provision for individuals to bring private claims against controllers and processors:
- any person who has suffered "material or non-material damage" as a result of a breach of the GDPR has the right to receive compensation (Article 82(1)) from the controller or processor. The inclusion of “non-material” damage means that individuals will be able to claim compensation for distress even where they are not able to prove financial loss.
- data subjects have the right to mandate a consumer protection body to exercise rights and bring claims on their behalf (Article 80).
Individuals also enjoy the right to lodge a complaint with a supervisory authority (Article 77).
All natural and legal persons, including individuals, controllers and processors, have the right to an effective judicial remedy against a decision of a supervisory authority concerning them or for failing to make a decision (Article 78).
Data subjects enjoy the right to an effective legal remedy against a controller or processor (Article 79).
Regarding the enforcement the German Authorities declared that they are of the opinion that the fines will not only be calculated based on the turnover of the specific affected company, but of the entire group of undertakings. However, whether this interpretation of Art. 83 (4), (5) and (6) GDPR in connection with Recital 150 GDPR is correct is currently highly disputed in Germany with solid arguments against this broad interpretation. The enforcement of fines is subject to the Act on Regulatory Offences (Gesetz über Ordnungswidrigkeiten – ‘OWiG’), other sanctions, eg, a temporary or definitive limitation or ban on processing, is subject to the rules regarding administrative procedures.
The GDPR will apply to most electronic marketing activities, as these will involve some use of personal data (eg, an email address which includes the recipient's name). The most plausible legal bases for electronic marketing will be consent, or the legitimate interests of the controller (which is expressly referenced as an appropriate basis by Recital 47). Where consent is relied upon, the strict standards for consent under the GDPR are to be noted, and marketing consent forms will invariably need to incorporate clearly worded opt-in mechanisms (such as the ticking of an unticked consent box, or the signing of a statement, and not merely the acceptance of terms and conditions, or consent implied from conduct, such as visiting a website).
Data subjects have an unconditional right to object to (and therefore prevent) any form of direct marketing (including electronic marketing) at any time (Article 21(3)).
Specific rules on electronic marketing (including circumstances in which consent must be obtained) are to be found in Directive 2002/58/EC (ePrivacy Directive), as transposed into the local laws of each Member State. The ePrivacy Directive is to be replaced by a Regulation, a change which is currently forecast for Spring 2019. In the meantime, GDPR Article 94 makes it clear that references to the repealed Directive 95/46/EC will be replaced with references to the GDPR. As such, references to the Directive 95/46/EC standard for consent in the ePrivacy Directive will be replaced with the GDPR standard for consent.
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 that:
- 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 communications sent by fax.
Direct marketing emails must not disguise or conceal the identity of the sender.
Like the GDPR, the BDSG (New) also does not have any specific provisions regarding marketing. The use of electronic communication for the purpose of direct marketing is currently regulated in Art. 13 of the EU Directive 2002/58 which is implemented in Sec. 7 of the German Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb – ‘UWG’) which will remain unaffected by the BDSG and the GDPR, see Art. 95 GDPR. Both provisions will be replaced by Art. 16 of the ePrivacy Regulation (Regulation on Privacy and Electronic Communications). This will likely not change anything regarding marketing via electronic communications in Germany. According to a recent court decision, processing of personal data for the purpose of marketing communication which is in breach of Sec. 7 UWG also constitutes a breach of the GDPR as it does not follow a legitimate purpose (Administrative Court [Verwaltungsgericht] Saarlouis, decision dated 9 March 2018, case number 1 K 257/17).
For using electronic communication for direct marketing prior consent is necessary (Double-Opt-In process), Art. 16 (1), e-Privacy Regulation, Sec. 7 (2) no. 1, 2 UWG. According to Article 6 (1) lit. a GDPR as well as according to established German case law data subjects must always give consent for a specific processing purpose. This means that the person to be contacted needs to know (1) from whom (meaning which specific entity) and (2) for which specific products and services he / she will receive marketing offers.
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
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, and
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 where the user has requested a connection overview.
The service provider may collect and use the customer data and traffic data of subscribers and users in order to detect, locate and eliminate faults and malfunctions in telecommunications systems. This applies also to faults that can lead to a limitation of availability of information and communications systems or that can lead to an unauthorized access of telecommunications and data processing systems of the users.
Otherwise, traffic data must be erased by the service provider without undue delay following termination of the connection.
Service providers have to inform the users immediately, if any faults of data procession systems of the users become known. Furthermore the service provider has to inform the users about measures for detecting and rectifying faults.
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 Telemedia 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 is provided upon the users’ request
- the user’s consent must be revocable at all times with effect for the future.
Germany has not yet taken any measures to implement the e-privacy directive. However, in February 2014 the German Federal Ministry of Economic declared that the European Commission considers the Cookie Directive as implemented in Germany. However, since the European Commission´s exact interpretation is not known, a final official clarification is awaited. It therefore remains to be seen 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.
So far the German Tele-media Act (Telemediengesetz – ‘TMG’) applied for the purposes of online privacy. The Act stems from both data protection law and IT security law. The GDPR replaces all data protection related obligations from the TMG based on the Directive 95/46/EC. Solely the provisions Sec. 13 (1) sentence 2 TMG and Section 13 (7) TMG (which is based on Article 16 EU Directive on security of network and information systems (NIS Directive)) will still apply. As Sec. 13 (1) sentence 2 TMG does not correctly transpose Article 5 (3) Directive 2002/85/EC into German law, the German Authorities are of the opinion that the data protection rules of the BDSG are fully replaced by the GDPR. The German Authorities also have stated that online-tracking and profiling are only admissible with the data subject’s consent. It remains to be seen whether this position will be upheld in court.
Commercial operators of tele-media services, which include website operators (even if services are provided for free), must, in the case of an automated procedure which permits subsequent identification of the recipient of the service and prepares the collection or use of personal data, inform the recipient of the service at the beginning of this procedure (Section 13 (1) sentence 2 TMG). Furthermore, they must take technical and organizational measures in light of ‘state-of-the-art’ technology to prevent security breaches and unauthorized access to their technical systems and to protect personal data (Section 13 (7) TMG).