Employee Data Protection Act to be (Finally) Finalized?

It has been an ongoing (if disrupted) saga since 2010, but it could be that the pending Federal Act on Employee Data Protection (we Germans simply cannot live without regulation on each and every aspect of life) will be finished and pushed through the competent legislative bodies (in 2012 even, as it has been suggested?).

So, what would be new? Well, until now we have been doing with just one, if very abstact, section in the Federal Data Protection Act. Now, we’d enjoy some 13 or so sections, each, not surprisingly, composed of several exhausting paragraphs. Fun for us lawyers, certainly! On the other hand, however, some grey areas (e.g. video surveillance, collecting telecommunications data) would actually be (somewhat) clarified. Yet, the most interesting new development is that, apparently, it would be possible for employers to, on an individual basis or though collective agreements (our so called “Betriebsvereinbarungen”), agree on a data protection rules with its staff that are different (i.e. less strict) from what will be the standard prescribed by the Act, so long as certain “red lines” are not crossed. Sounds like it makes sense, right? Well, in the draft of the Act, version 2010, such individual solutions are effectively outlawed, unless they are at least as strict as the standards set by the statute. The unions having already voiced their displeasure, employers can only hope that the current government sticks to its plans. And lawyers too, of course, as many a “Betriebsvereinbarung” would await drafting…

But, actually, I doubt that the Act will actually materialize in the foreseeable future, given that the legislative focus has really been shifting towards the proposed General Data Protection Regulation on EU level. The proposal does leave room for national legislation on employee data protection. But whether the Bundestag will have enough energy left to actually push the Act through remains to be seen, especially since the proposed Regulation says that any national legislation must stay “within the limits of [the] Regulation“.


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