German data protection authorities: old consents survive under the GDPR if…

On 14th September, the German data protection authorities (“DPAs”), gathering in the so called “circle of Düsseldorf”, issued a non-binding opinion (pdf, German) on the question of the lawfulness of consents under the looming General Data Protection Regulation (“GDPR”), which were obtained under the conditions of the current legal framework.
Continue reading

European Court of Justice rules on applicable data protection law and terms of use

Today the European Court of Justice (ECJ) decided in the case C-191/15 (Verein für Konsumenteninformation vs Amazon EU Sàrl). The ruling sheds light on some interesting questions with regard to consumer protection law and also assesses the European data protection rules on applicable law.

With regard to consumer protection, the case concerned potentially unfair terms in the terms of use of Amazon EU, a company established in Luxembourg. The ECJ clarified that the law applicable to the examination of the unfairness of terms in consumer contracts which are the subject of an action for an injunction (in this case by Verein für Konsumenteninformation) must be determined independently from the law applicable to the action of injunction itself. National courts might therefore face a situation where they would have to assess the unfairness of certain clauses in terms of use on the basis of the law of another Member State. This result is though not entirely surprising but is now affirmed by the ECJ in a case considering e-commerce.
Continue reading

General Data Protection Regulation: German DPAs demanding more staff and financial resources

On 24 May 2016, the Data Protection Regulation has entered into force. From 25 May 2018 it will be directly applicable in all European Member States. Not only companies or authorities therefore now have two years to adapt their data processing activities to future requirements. The national legislature must consider the applicable data protection regulations in its Member State for compliance with the future regulations.

Against this background, the conference of the independent German data protection authorities (“conference”), in a resolution of 25 May 2016 (German), calls on the German legislator to provide the data protection authorities with more staff and financial resources so they can effectively meet their assigned duties.
Continue reading

Federal Administrative Court asks ECJ: Who is responsible for data processing on Facebook Fanpages?

With its decision from 25. Februrary 2016, the German Federal Administrative Court referred several interesting data protection questions related to the operation of a Fanpage on Facebook to the European Court of Justice (ECJ) (the whole decision can be accessed here, in German). The case number at the ECJ is C-210/16. Since there does until now not exist an English version of the reference for a preliminary ruling, you will find beneath a rough translation of some of the questions referred.
Continue reading

German DPAs „leak“ EU-US Privacy Shield assessment by European Authorities

On 6th and 7th April 2016, the German Data Protection Authorities (“DPAs”) met to discuss several current privacy topics.

One point on the agenda has of course been the assessment of the proposed EU-US Privacy Shield (the successor of the Safe Harbor regime). Currently, the European Data Protection Authorities (the so called “Article 29 Working Party”) are finalizing their common position on the proposed adequacy decision by the European Commission (pdf).

Today, the resolution of the DPAs for the mandate of the German representatives in the Article 29 Working Party has been published (German, pdf).
Continue reading

German Regional Court: Consent necessary when implementing the Facebook Like-Button

On 9th March 2016, the Regional Court of Dusseldorf issued its ruling (pdf, German) in a proceeding between the consumer protection association of North Rhine-Westphalia and the company Fashion ID which concerned data protection issues surrounding the Facebook Like-Button.

The company had the well-known social plugin included on its website and informed website visitors about the plugin in its privacy policy, which was accessible via a link. In the privacy policy, the company informed that personal might be transmitted to Facebook and also provided a link to the privacy policy of Facebook. Below I will briefly discuss some aspects of the judgment. Continue reading

Watch out: Consumer protection associations may now sue companies for data protection violations

On 24th February, a new law for the civil enforcement of violations of data protection rules, specifically protecting consumers entered into force. With this new law, certain provisions of the German Act on Injunctive Relief (Unterlassungsklagengesetz – UklaG) are amended and also extended.

Previous situation
Until now, consumer protection organizations (e.g. the Federation of German Consumer Organisations – vzbv) were only able to challenge privacy policies of companies under the German Act on Injunctive Relief if the competent court acknowledged that the respective policy could be considered as general terms and conditions (see for example one press release about a recent lawsuit against Facebook, pdf). In general, certain clauses of privacy policies were therefore the aim of legal actions if these clauses deviated from the statutory provision of data protection law. If personal data were in fact processed in an unlawful way was merely the question.
Continue reading

Smart Cars: Industry and German authorities agree on certain aspects of data protection

On 26th January 2016, the conference of the German data protection authorities and German Association of the Automotive Industry (VDA) agreed on a joint statement (PDF, in German) concerning aspects of data protection relating to the usage of smart cars.
According to the parties, smart cars and the proceeding digitalization in cars create advantages (safety and comfort) but also risks for the personal rights of individuals. The German authorities and car manufacturers agreed inter alia on the following aspects:

1. Personal data: During the use of modern cars, data is created permanently. Particularly by using additional information, this data created by smartcars can be attributed to the car owner or to the driver and be considered “personal data” in the sense of European data protection law. Data created during the usage of a vehicle is at least considered “personal data” within the meaning of the Federal Data Protection Act (Act), if it is linked to the vehicle identification number or the license plate. Continue reading

German DPAs: Situation regarding consent for cookies is “unacceptable”

In February 2015, the German data protection authorities adopted a resolution with the title “Tracking of user behavior on the Internet” (German).

In this resolution, the authorities urge the German government to finally transpose the standards of European directive 2002/58/EC (so called ePrivacy Directive). The authorities are of the opinion that the current German data protection law (especially the German Telemedia Act (Telemediengesetz)) does not correctly implement Art. 5 para 3 of directive 2002/58/EC (in the revised version of directive 2009/136/EC). According to Art. 5 para 3 of the ePrivacy Directive, European “Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, about the purposes of the processing”. Continue reading

ECJ-decision: International jurisdiction in case of copyright infringement on a website

By judgment of 22 January 2015 (C-441/13), the European Court of Justice (ECJ) decided on the interpretation of Art. 5 para 3 of Regulation 44/2001 (Brussels I) on international jurisdiction of courts in a copyright infringement case. According to the ECJ, in case of an alleged infringement of copyrights and rights related to copyright by placing of protected photographs online on a website, the court is competent in the district where this website is accessible in its territorial jurisdiction. But this national court has jurisdiction only to rule on the damage caused in the European Member State within which the court is situated.
Continue reading

District Court of Berlin: Google Germany not responsible for ‘right to be forgotten’-requests

On 21 August 2014, the District Court of Berlin ruled (27 O 293/14, German) that the subsidiary of Google in Germany, Google Germany GmbH, is not responsible for the fulfillment of requests of natural persons under the so called ‘right to be forgotten’, created by the European Court of Justice (ECJ) in its much-noticed judgment in May 2014 (C-131/12). The Berlin court held that only the American company, Google Inc., can be regarded as the ‘data controller’ in the sense of European data protection law because only Google Inc. is the operator of the search engine. As a consequence, legal actions must be brought against Google Inc., not the subsidiary in Hamburg. Natural persons who want a link to third party websites to be removed from the search result list following a search made on the basis of a person’s name would therefore have to sue Google Inc. and not the European subsidiary.
Continue reading

Will the use of social networks fall outside the scope of future data protection law?

If private persons use social networking services (e.g. Facebook, Twitter, GooglePlus) in the Internet these days, hardly anyone might think about legal obligations for these users under the current data protection regime. Why should natural, private persons be considered “data controllers” in the sense of Art. 2 (d) of the European data protection directive (95/46/EC), if they share photos or write comments? They are only acting in a private and personal capacity. Well, this view might be true from a factual perspective. But with regard to European data protection law, already in a 2009 opinion (PDF), the Article 29 Working Party (an independent European advisory body on data protection, formed by representatives of European data protection authorities) held that “a high number of contacts could be an indication that the household exception does not apply and therefore that the user would be considered a data controller”. Conclusion: if you share a photo, name etc. with many people on Facebook, you might be a data controller in the eyes of data protection authorities and would therefore have to proof the lawfulness of the respective data processing operation. Continue reading

Smart cars: Who owns the data?

The ‘Internet of Things’ is one of the current buzzwords in the international data protection sphere. In the future, more and more home appliances will have a connection to the Internet and will serve as sensors in our homes, facilitating our life as one may for example turn on the heating via an app while driving home at night from the office.

Not only will we see more and more smart devices in our homes, but also car manufacturers are increasing their efforts for future solutions of the next generation of smart cars. At this year’s CeBit in Hannover, privacy issues surrounding the smart car were one of the top themes. “I clearly say yes to Big Data, yes to greater security and convenience, but no to paternalism and Big Brother”, said Martin Winterkorn, Chairman of the Volkswagen Group, at the opening ceremony.
Continue reading

Home office solutions for employees – requirements under German data protection law

Under German data protection law, as well as under the European data protection directive (95/46/EC), there exist no specific provisions that would govern the processing of personal data in home office scenarios. Only few German data protection authorities published recommendations on how or which kind of technical or organizational measures should be implemented, if a company wants to grant its employees the benefit of working at home. The few existing recommendations remain mainly vague and don’t name specific measures which must be taken.
Continue reading

European data protection law and minors – no legal certainty

The fundamental right to the protection of personal data as enshrined in Art. 8 (1) of the Charter of Fundamental Rights of the European Union (PDF) as well as the right to informational self-determination, derived from Art. 2 (1) and 1(1) of the German Constitution are not exclusive right of adults. Also children’s personal data are protected by these fundamental rights and consequently by the European Data Protection Directive (Directive 95/46/EC) or the respective national laws.

But if it comes to the practical compliance for companies, for example if you want to develop an app for children, European data protection laws currently will leave providers alone with an answer to the question, when a consent by minors might serve as the legal basis for the processing of their data. Continue reading