Similar to the GDPR, the BDSG prescribes cooperation mechanisms for the various regulators in order to ensure a consistent application of the GDPR. The materials herein are for informational purposes only and do not constitute legal advice. The Data Protection Act brings the country's rules in line with the EU General Data Protection Regulation. processing is necessary for the establishment, exercise, or defence of civil claims; unless the data subject has an overriding interest in not having the data processed. The data protection officer shall be appointed by the board of administration for a term of four years upon nomination by the director- general; reappointments shall be admissible. It is not generally unlawful to sell and purchase marketing lists. Section 43 of the BDSG provides that violations of these requirements may be punished by an administrative fine of up to 50,000. The DSK mentions this exception in its guidelines regarding whistleblowing hotlines (only available in German here) in connection with the general requirement to inform the incriminated person about the identity of the whistleblower. Personal data must be accurate and, where necessary, kept up to date. Alternatively, German authorities may also pro-actively initiate investigations. Start taking advantage of the many IAPP member benefits today, See our list of high-profile corporate membersand find out why you should become one, too, Dont miss out for a minutecontinue accessing your benefits, Review current member benefits available to Australia and New Zealand members, Germany's Parliament passed a data protection and privacy law for regulating telecommunications and telemedia, Euractiv reports. Primarily in charge for Federal public entities is the Federal Data Protection Authority. On a federal level Bundestag and Bundesrat enacted the Bundesdatenschutzgesetz (Federal Data Protection Act). Member States cannot add new . Subsequently, the Schleswig-Holstein State Commissioner for Data . Section 14 of the BDSG lists a long list of tasks of the BfDI and clarifies that these are in addition to the tasks contained in the GDPR. Includes information on data privacy that U.S. firms should be aware of when exporting to the market. Previously, in October 2019, the CJEU had already ruled that 15(3) TMG (Telemediengesetz) had to be interpreted in line with Article 5(3) ePD, even against the explicit wording of that provision, in its Planet49 ruling. Section 33 of the BDSG stipulates that the information requirement does not apply, if providing the information would interfere with the establishment, exercise, or defence of legal claims, or processing includes data from contracts under private law and is intended to prevent harm from criminal offences, unless the data subject has an overriding legitimate interest in receiving the information. Includes information on transferring customer data to countries outside EU that U.S. firms should be aware of when exporting to the market. The German Federal Council has now approved a new Federal Data Protection Act (FDPA). This right is restricted where the solely automated decision: (i) is necessary for entering into, or the performance of, a contract between the data subject and controller; (ii) is authorised by EU or Member State law to which the controller is subject (and which contains suitable measures to safeguard the data subjects rights); or (iii) is based on the data subjects explicit consent. Your trust in us is our top priority. This exception is quite relevant in practice. I at 2954, as amended. It replaces the Data Protection Directive 1995/46. Data Protection > Working Document 158 of the WP29 provides for information on pre-trial discovery. The right of access does not apply to the extent providing access would disclose information which by law or its nature must be kept secret, in particular, because of overriding legitimate interests of a third party (Section 29(1) of the BDSG). The main purpose of the new law is to consolidate existing data protection provisions enshrined in the German Telemedia Act of 2007 and the German Telecommunications Act (only available in German here) in one new act and to implement the Directive on Privacy and Electronic Communications (2002/58/EC) (as amended) ('the ePrivacy Directive'). According to the court's press release, it was not clear exactly which e-mails the request referred to. Importantly, supervision of GDPR compliance of private bodies falls onto the supervisory authorities of the Lnder (Section 40 of the BDSG). the Regional Court of Wrzburg (only available in German here), the Higher Regional Court of Hamburg (only available in German here), and the Higher Regional Court of Naumburg (only available in German here)) other courts took the opposite view mostly arguing that Articles 77 to 84 of the GDPR are exhaustive and leave no room for complaints under the German UWG (e.g. 38 BDSG, if a company operating in Germany continues to employ at least 10 people who handle automated processing of personal data, it must appoint a data protection officer. 7.8 How frequently must registrations/notifications be renewed (if applicable)? 15.3 To what extent do works councils/trade unions/employee representatives need to be notified or consulted? If the appointment of a Data Protection Officer is only mandatory in some circumstances, please identify those circumstances. If the processing activities have substantial significance for the controller's performance of tasks and are therefore urgent, the controller may initiate processing after the consultation has started but before the expiration of the aforementioned response period (Section 69(4) of the BDSG). Restriction of processing will then apply instead of a right to erasure. 16.2 Is there a legal requirement to report data breaches to the relevant data protection authority(ies)? The GDPR entitles the relevant data protection authority to impose a temporary or definitive limitation including a ban on processing without a court order. They investigate the use of cookies on websites pro-actively as well as upon complaints. A business should only process the personal data that it actually needs to process in order to achieve its processing purposes. 7.3 On what basis are registrations/notifications made (e.g., per legal entity, per processing purpose, per data category, per system or database)? The DSK makes it clear that data protection does not hinder measures to fight COVID-19. Join us in Munich to make lasting connections with peers, regulators and data protection experts. This interpretation was adopted by the German Federal Court of Justice in its June 2020 ruling on the same case.[6]. The main establishment is to be determined in accordance with Article 4(16) of the GDPR, which designates as the main establishment the place of central administration, unless the decisions on the purposes or means of processing are taken in another establishment which also has the power to implement such decisions, in which case that establishment is the main establishment. German courts seemed to take a narrow interpretation of non-material damages and ruled that the person who has suffered non-material damages must have suffered a noticeable disadvantage and that a mere infringement of the GDPR does not automatically entail a claim for damages (see for example, Local Court Dietz and Higher Regional Court Dresden (available in German here) as well as the Regional Court of Karlsruhe). Consent shall be given in writing or electronically, unless another form is appropriate due to special circumstances. Personal data must be processed in a manner that ensures appropriate security of those data. Finally, Section 26(3) of the BDSG provides that the processing of special categories of personal data for employment-related purposes shall be permitted if necessary to exercise rights or comply with legal obligations derived from labour law, social security, and social protection law, and there is no reason to believe that the data subject has an overriding legitimate interest in the data not being processed. : Michael Schmidl is a honorary professor at the University of Augsburg and specialist lawyer for Information Technology law (Fachanwalt fr IT-Recht). Save and organize information most relevant to you, Share your research and collaborate with other DataGuidance users, Get alerts based on your topics of interest, Understanding the New CPRA Draft Regulations & the ADPPA, UK: Overview of the Data Protection and Digital Information Bill, International: China's draft Standard Contract for cross-border data transfers - Implications and comparison against EU SCCs, Russia: Amendments to the Law on Personal Data - strengthening privacy compliance, General Data Protection Regulation (Regulation (EU) 2016/679), Federal Data Protection Act of 30 June 2017 (implementing the GDPR), Data Protection Directive with Respect to Law Enforcement (Directive (EU) 2016/680), Directive on Privacy and Electronic Communications (2002/58/EC) (as amended), Federal Commissioner for Data Protection and Freedom of Information, EDPB Opinion 5/2018 on the draft list of the competent supervisory authorities of Germany regarding the processing operations subject to the requirement of a data protection impact assessment (Article 35.4 GDPR), Data Protection Authority of Bavaria for the Private Sector, State Commissioner for Data Protection and Access to Information Brandenburg, Hamburg State Commissioner for Data Protection and Freedom of Information ('HmbBfDI'), Saxon data protection authority ('SchsDSB'), Baden-Wrttemberg data protection authority, Hamburg Commissioner for Data Protection and Freedom of Information, Ireland: Minister signs into law Protected Disclosures (Amendment) Act 2022, Netherlands: Council of State advises on latest amendments to whistleblowing bill, California: Governor approves bill on vehicle identification and registration through alternative devices, India: Amendments to IT intermediary rules published in Official Gazette, Japan: PPC issues alert on handling personal information in medical institutions. Please contact us by e-mail ( info@winheller.com) or by phone ( +49 69 76 75 77 80 ). The German legislator is relying on Article 83(8) of the GDPR in order to justify this provision. 13.1 What is the permitted scope of corporate whistle-blower hotlines (e.g., restrictions on the types of issues that may be reported, the persons who may submit a report, the persons whom a report may concern, etc.)? A breach of the Royal Mails Click and Drop service leaked customers parcel data to other users, Tech Monitor reports. 8.4 Can a business appoint a single Data Protection Officer to cover multiple entities? Section 26 of the BDSG shall also apply when personal data, including special categories of personal data, of employees are processed without being stored or intended to be stored in a file system. By Christoph Ritzer (DE) and Natalia Filkina (DE) on January 13, 2021 Posted in Compliance and risk management, Data breach A German state data protection authority has issued a fine of EUR 10.4m against a mid-size online retailer who allegedly violated the EU General Data Protection Regulation (GDPR) by monitoring their employees using CCTV. for the Federal DPA in Bonn/North Rhine-Westphalia - the administrative court in Cologne, for the LDI in Dsseldorf (North Rhine-Westphalia) - the administrative court in Dsseldorf). As such, with regard to notifications of the appointment of a DPO, Lnder supervisory authorities have produced online notification forms for organisations to confirm the details of the DPO and/or change and update the DPO's details: Section 29(1) of the BDSG provides that, in addition to the exceptions listed under Article 34(3) of the GDPR, the obligation to inform data subjects of a personal data breach shall not apply to the extent meeting this information obligation would disclose information which by law or its nature must be kept secret, in particular, because of an overriding legitimate interests of a third party. Data subjects have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects that concern (or similarly significantly affect) them. Practice Areas > A rise in enforcement activity by the data protection authorities is expected, e.g., in the context of the use of cookies. The rankings are the result of extensive research by our internal research team, who conduct interviews with in-house counsel, other third-party . Notably, any subsequent BfDI recommendations must be considered after the fact (Section 69(4) of the BDSG). If so, are there any best practice recommendations on using such lists? 4.1 What are the key principles that apply to the processing of personal data? providing information would endanger a confidential transfer of data to public authorities. The principal data protection legislation is Regulation (EU) 2016/679, also known as the General Data Protection Regulation or GDPR. 7.11 Is there a publicly available list of completed registrations/notifications? 15.1 What types of employee monitoring are permitted (if any), and in what circumstances? 18.1 How do businesses typically respond to foreign e-discovery requests, or requests for disclosure from foreign law enforcement agencies? 3.1 Do the data protection laws apply to businesses established in other jurisdictions? The General Data Protection Regulation (GDPR) provides for the free flow of personal data within the EU but also for its protection when . Section 26(3) of the BDSG contains a legal basis for the processing of special categories of personal data for employment-related purposes. If no legal requirement exists, describe under what circumstances the relevant data protection authority(ies) expect(s) voluntary breach reporting. German regulations regarding the obligation to appoint a data protection officer are stricter than those stipulated in Article 1. Generally, marketing by post is accepted, unless the recipients have objected. Section 86 of the BDSG provides that public and private bodies may process personal (including sensitive) data for purposes of national awards and honours without informing the data subject. The EU General Data Protection Regulation (GDPR) establishes a harmonized data protection law throughout the European Union. This page was last edited on 3 November 2022, at 13:49. after three years for offences punishable by a fine of 15,000>; after two years for offences punishable by a fine of of 2,500-15,000; after one year for offences punishable by a fine of 1,000-2,500; after six months for other administrative offences (<1,000). The original fine pertained to insufficie USA Today reports on the privacy implications of Twitter's potential transformation under Elon Musk. Join our community for free to access exclusive whitepapers, reports, and regulatory information. In a press release dated 20th of September 2022, the Berlin Data Protection Authority announced that it imposed a fine of EUR 525,000 on the subsidiary of a Berlin-based e-commerce group due to a conflict of interests arising from the company's data protection officer ("DPO").. What happened? The DSK's Short Paper No. Data Protection Authorities BfDI (Federal DPA) The German Federal Data Protection Authority ( Der Bundesbeauftragte fr den Datenschutz und die Informationsfreiheit) is the national data protection authority for Germany. The below TMT: Data Protection rankings table provides market-leading insights on the top ranked lawyers and law firms whose advice and legal services can be purchased in Germany. Discover what topics are trending at the moment. 2 German Civil Procedure Code. It remains to be seen how these provisions will be interpreted and enforced in practice and whether they will be subjected to judicial challenge. Proportionality requires that only that personal data which is adequate and relevant for the purposes of the processing is collected and processed. Personal data must be processed in a way which ensures security and safeguards against unauthorised or unlawful processing, accidental loss, destruction and damage of the data. The Federal Commissioner for Data Protection and Freedom of Information (BfDI, German: Bundesbeauftragter fr den Datenschutz und die Informationsfreiheit), referring to either a person or the agency they lead, is tasked with supervising data protection as well as acting in an ombudsman function in freedom of information.The latter was introduced with the German Freedom of Information Act on . The birthday of data protection law in Germany is 30 September 1970, the date on which the Hessian state parliament[1] passed the Data Protection Act[2]. 9.1 If a business appoints a processor to process personal data on its behalf, must the business enter into any form of agreement with that processor? Section 4 of the BDSG contains specific rules relating to video surveillance of publicly accessible areas. they permanently employ at least 20 persons dealing with the automated processing of personal data (changed from ten to 20 persons by the Second Data Protection Adaptation Act); they undertake processing subject to a DPIA; or. Heuking Khn Ler Wojtek is one of Germany's major commercial law firms, with more than 400 lawyers in nine offices across Germany and in Zurich offering service at the highest level. Daniel Rcker In this regard, the purpose pursued defines the required legal basis. Germany - Transferring Customer Data to Countries Outside of the EU. Access all reports and surveys published by the IAPP. Importantly, Section 43(4) of the BDSG provides that breach notifications to a regulator or affected data subjects may not be used in proceedings pursuant to the Act on Regulatory Offences 1987against the person required to provide such notification unless the person has consented. In January 2021, the German Federal Constitutional Court overturned a ruling of a local court which dismissed a claim for non-material damages pursuant to Article 82(1) of the GDPR, and decided that the requirements and scope of Article 82 of the GDPR must be clarified by the CJEU (only available in German here). The LAG Baden-Wrttemberg ruled that the protection of whistleblowers might generally constitute information which must be kept secret; however, this requires a balancing of interests, and the secrecy interest must be sufficiently substantiated. in September 2021, the HmbBfDI imposed a 900,000 fine on a European power company's subsidiary in Germany for insufficient information of customers about the processing of their data (press release only available in German, concerning the 14.5 million fine of the Berlin Commissioner against a real estate company for violating data retention requirements: (see above): In February 2021, the Berlin Regional Court discontinued the proceedings: The Berlin Commissioner's decision was invalid (only available in German, concerning the 9.5 million fine imposed by the BfDI a telecommunication company for insufficient authentication procedures in the customer call center (see above): the Regional Court of Bonn significantly reduced the fine of the BfDI to 900,000 (only available in German. English Translation of National Implementation Law: Gemeinsamer Senat der obersten Gerichtshfe des Bundes, Joint Senate of the Supreme Courts of the Federation. Judgement of the first senate of 15. 16.3 Is there a legal requirement to report data breaches to affected data subjects? Germany passes data protection, privacy law for telecommunications schedule May 24, 2021 queue Save This Germany's Parliament passed a data protection and privacy law for regulating telecommunications and telemedia, Euractiv reports. On 3 July 2020, the German parliament passed a draft bill (German language) for patient data protection and for more digitalisation in the German healthcare system (Patientendaten-Schutz-Gesetz).The draft bill is currently in the legislative procedure and is expected to enter into force in autumn 2020. The census was to be carried out door-to-door by civil servants or public administration officials, as a comparison of registers by the authorities was considered too error-prone. Personal data must be processed lawfully, fairly and in a transparent manner. The steps are as follows: Notably, some regional supervisory authorities have published guidelines relevant to DPIAs, for instance: Controllers are required to consult the BfDI prior to processing which will form part of a new filing system if Section 69(1) of the BDSG: If the BfDI believes that the planned processing would violate the law, in particular, because the controller has not sufficiently identified the risk or has not taken sufficient measures to mitigate the risk, the BfDI may provide the data controller and/or processor with written advice as to measures which should be taken within a period of six weeks of receipt of the request for consultation (Section 69(3) of the BDSG).
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