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. Talk privacy and network with local members at IAPP KnowledgeNet Chapter meetings, taking place worldwide. Includes information on transferring customer data to countries outside EU that U.S. firms should be aware of when exporting to the market. right of access (Article 15 of the GDPR); right to rectification (Article 16 of the GDPR); right to restriction of processing (Article 18 of the GDPR); and. Prior to giving consent, the data subject must be informed of the right to withdraw consent. processing is necessary to prevent threats to state or public security or to prosecute criminal offences; or. The TTDSG will come into force on 1 December 2021. When transferring personal data to a country other than an Adequate Jurisdiction, businesses must ensure that there are appropriate safeguards on the data transfer, as prescribed by the GDPR. 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. In this regard, the purpose pursued defines the required legal basis. 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. GDPR is a comprehensive privacy legislation that applies across sectors and to companies of all sizes. This blacklist lists 17 types of data processing operations which require a DPIA. in cases of data processing for purposes of scientific or historical research and for statistical purposes, the right to object is limited to the extent that it is likely to render impossible or seriously impair the achievement of research or statistical purposes and such limits are necessary for the fulfilment of the research and statistical purposes (Section 27(2) of the BDSG); and. Please note that businesses require stronger legal grounds to process sensitive personal data. Requests from within the EU can be based on mutual assistance treaties and may then be processed similarly to requests by German agencies. The Second Data Protection Adaptation Act further amends the BDSG and also amends 154 other federal laws (all listed in the Second Data Protection Adaptation Act) to reconcile them with the GDPR. Gain exclusive insights about the ever-changing data privacy landscape in ANZ and beyond. It is not generally unlawful to sell and purchase marketing lists. Based on the opening clauses contained in the GDPR, the German Federal Data Protection Act (BDSG) is the most relevant data protection law for companies doing business in Germany. 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). Dr. Michaela Nebel is a partner in the Frankfurt office of Baker McKenzie. The next step in in data protection law was taken in 1983 by the German Constitutional Court. On 7 November 2018, the data protection authority of the Free State of Bavaria, Germany, issued a press release that, now that the European General Data Protection Regulation (GDPR) has been in effect for six months, the authority will intensify its GDPR compliance monitoring. Requirements for dealing with health data 10.3 Please describe any legislative restrictions on the sending of marketing via other means (e.g., for marketing by telephone, a national opt-out register must be checked in advance; for marketing by post, there are no consent or opt-out requirements, etc.). 42 bdsg-new certain data protection infringements are considered criminal offences and can be sentenced with up to three years in prison or a fine, e.g. The EU General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) applies directly in Germany (see Question 1) and sets out six lawful bases for processing personal data. with regard to public bodies, the right to object does not apply if the processing is required by law or if there is an urgent public interest in the processing which outweighs the interests of the data subject (Section 36 of the BDSG). We also disregard those parts of the BDSG that are implementing provisions of Directive 2016/680 and will focus on those provisions relevant for private bodies. 8.1 Is the appointment of a Data Protection Officer mandatory or optional? processing of biometric data for the unique identification of natural persons, if at least one of the following criteria applies: data concerning vulnerable data subjects; innovative use or application of new technological or organisational solutions; automated decision making with legal or similar significant effect; or. She is a member of the International Association of Privacy Professionals (IAPP) and since May 2015 a Certified Information Privacy Professional/Europe (CIPP/E) and since May 2017 a Certified Information Privacy Professional/United States (CIPP/US). In addition, breaches of the TTDSG can be subject to administrative fines of up to EUR 300,000. 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. On 3 July 2020, Germany's Federal Parliament, the Bundestag, passed the Patient Data Protection Act or Patientendaten-Schutz-Gesetz (PDSG). For private bodies, Germany largely retains its pre-GDPR rules regarding the duty to appoint a DPO. Germany has had the most data protection breaches since the introduction of the GDPR Germany recorded 76 percent more data breaches in the pandemic year, far more than any other country Further, Section 26(4) of the BDSG stipulates that the processing of personal data, including special categories of personal data of employees is permitted on the basis of collective agreements. Sections 29, 32, and 33 of the BDSG list circumstances in which information does not have to be provided to data subjects as envisaged by Articles 13 and 14 of the GDPR respectively. Since the introduction of the GDPR, nearly 80,000 data protection violations have been recorded in Germany with a total value of 69 million euros. 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. 18.1 How do businesses typically respond to foreign e-discovery requests, or requests for disclosure from foreign law enforcement agencies? The other states soon followed, and on 1 January 1978, the first German Federal Data Protection Act (BDSG) entered into force. Signup for a trial to access unlimited content. 16.4 What are the maximum penalties for data security breaches? The EU-US Data Privacy Framework: A new era for data transfers? processing is necessary for reasons of substantial public interest and the interests of the controller in the data processing outweigh the interests of the data subject (this derogation was added in June 2019 through the Second Data Protection Adaptation Act and previously only applied to processing by public bodies). A data subject has the right to withdraw their consent at any time. Data protection Belgium (NL) 5.2 Please confirm whether data subjects have the right to mandate not-for-profit organisations to seek remedies on their behalf or seek collective redress. The overall objectives of the measures are the same laying down the rules for the protection of personal data and for the movement of data. Germany was the first European Union Member State to adopt a national law implementing the GDPR in the form of the BDSG, which entered into force on 25 May 2018 and which also implements the Data Protection Directive with Respect to Law Enforcement (Directive (EU) 2016/680) ('Directive 2016/680') and amends a number or other federal laws all listed in the BDSG. 10.5 Is/are the relevant data protection authority(ies) active in enforcement of breaches of marketing restrictions? 15.2 Is consent or notice required? 1 lit. The UK GDPR Children's Code . On 28 May 2020, the Federal Court of Justice submitted to the Court of Justice of the European Union ('CJEU') the question of whether competitors or consumer protection associations may initiate a civil action in case of infringements of the GDPR (only available in German here). specific derogations relating to processing for scientific or historical research purposes, statistical purposes, archiving purposes in the public interest, and employment purposes. National regulation concerning the processing of special categories of data and criminal conviction data. processing data that is not publicly available without authorisation or fraudulently acquiring such data in return for a payment or with the intention of enriching oneself or someone else or harming someone may be punished with imprisonment of up to two years or a fine. Learn the intricacies of Canadas distinctive federal/provincial/territorial data privacy governance systems. If it is prohibited or discouraged, how do businesses typically address this issue? The BDSG applies to both private and public bodies of the Federation (and in very limited instances public bodies of the Lnder). On 21 October 2020, the Federal Labour Court submitted to the CJEU the question of whether the GDPR precludes a provision in national law, which declares ordinary termination of the employment contract of the DPO to be impermissible (available here). Use the Vendor Demo Center, Privacy Vendor List and Privacy Tech Vendor Report to easily identify privacy products and services to support your work. Under the new framework, a fine for GDPR violations will be calculated in five steps as shown below: 25(1) TTDSG mandates that information (notably also information that is not considered personal data under the GDPR) may only be stored on or accessed from a user's terminal equipment if the user has given consent based on clear and comprehensive information, which is to be provided in accordance with the GDPR. Other rules apply to the healthcare sector. . transferring data to a third party or otherwise making it accessible for commercial purposes may be punished with up to three years imprisonment or a fine if done deliberately and without authorisation with regard to the personal data of a large number of people; and. Sensitive data:There are no variations from the GDPR. German supervisory authorities suggest using a sign with a large camera-pictogram on it including the most relevant information (e.g., identity of the controller, purpose of processing, duration of storage or legal basis and a link to further information). Increase visibility for your organization check out sponsorship opportunities today. If so, describe what details must be reported, to whom, and within what timeframe. He advises in all areas of contentious and non-contentious Information Technology law, including Internet, Computer/Software, Data Privacy and Media law. Contents 1 Historical development 1.1 1960-1970 September 2022 As of October 1, the collection point of the GKV-Spitzenverband is to be provided with extensive health data of 73 million insured persons from Germany in order to be able to evaluate them scientifically. On 26 November 2019, the Second Act Adapting Data Protection Law to Regulation (EU) 2016/679 and Implementing Directive (EU) 2016/680 (only available in German here) ('the Second Data Protection Adaptation Act') entered into force. In July 2017, Germany was the first EU member state to pass a Data Protection Adaptation and Implementation Act (Bundesdatenschutzgesetz BDSG-New), which will come into effect on the 24th of May and enforceable the same day as the GDPR. A major European energy supplier in connection with a due diligence in respect of data protection law conducted for the numerous general terms and conditions documents for various group companies regarding compliance with the BDSG and the GDPR in connection with the largest European outsourcing project in the field of utilities. Key acts, regulations, directives, bills Section 4 of the BDSG was originally introduced in response to terrorist attacks and rampages in order to allow more privately-operated video surveillance cameras in public spaces. The notification must include the name and contact details of the Data Protection Officer (or point of contact), the likely consequences of the breach and any measures taken to remedy or mitigate the breach. If no legal requirement exists, describe under what circumstances the relevant data protection authority(ies) expect(s) voluntary breach reporting. ICLG.com > 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. As a general rule, the sanctions provided under the GDPR will apply. Health data are sensitive personal data that are covered by special legal protection in Germany and Europe. 16.2 Is there a legal requirement to report data breaches to the relevant data protection authority(ies)? You have out of 5 free articles left for the month. This means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller. Proportionality requires that only that personal data which is adequate and relevant for the purposes of the processing is collected and processed. Data subjects have the right to rectification of inaccurate personal data. The German Datenschutzkonferenz (DSK), the joint body of the German data protection authorities, has just published the model which it intends to use to calculate fines pursuant to Article 83 of the GDPR. Includes information on data privacy that U.S. firms should be aware of when exporting to the market. Restrictions in the case of secrecy obligations. The U.K. Information Commissioner's Office announced a reduction of its fine against the U.K. This differs from the GDPR. In particular, 25 TTDSG defines privacy protections for terminal equipment and is to be understood as an implementation of Article 5(3) ePD. German federal law contains a legal basis for further (administrative) acts that may allow the processing of information on test, recovery or immunisation status. Germany - Using an Agent to Sell US Products and Services, Germany - Trade Promotion and Advertising, Germany - Principle Business Associations, Germany - Limitations on Selling U.S. Products and Services, Germany - Protecting Intellectual Property, Germany - Transferring Customer Data to Countries Outside of the EU, Germany - Information and Communications Technology, Germany - Import Requirements and Documentation, Germany - Labeling and Marking Requirements, Germany - Prohibited and Restricted Imports, Germany - Licensing Requirements for Professional Services, Germany - U.S. Banks and Local Correspondent Banks. Data subjects have the right to restrict the processing of personal data, which means that the data may only be held by the controller, and may only be used for limited purposes under certain circumstances. Meet the stringent requirements to earn this American Bar Association-certified designation. Please describe which types of transfers require approval or notification, what those steps involve, and how long they typically take. Finally, the DSK has issued practical guidance on how to carry out a DPIA (only available in Germanhere). Many data protection provisions are included in sector-specific legislation, including social security laws ( Sozialgesetzbuch I-X - SGB I-X). National Data Protection Authorities ("DPAs") have already provided guidance on such particularities relating to COVID-19. The legislative restrictions depend on the means of the specific marketing. For contracts concluded after 27 September 2021, the 2021 SCCs must be incorporated. Exceptions apply for the following reasons: (i) the marketing concerns similar goods or services of the seller; (ii) the buyer has not objected to the use of the email address for marketing; and (iii) the buyer is informed of the right to object when providing the email address and again in each marketing email. 7.6 What are the sanctions for failure to register/notify where required? 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? 10.6 Is it lawful to purchase marketing lists from third parties? Germany has adjusted the German legal framework to the GDPR by passing the new German Federal Data Protection Act ( Bundesdatenschutzgesetz - 'BDSG'). 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. This means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data. 18.2 What guidance has/have the data protection authority(ies) issued? The processing of sensitive personal data is only permitted under certain conditions, of which the most relevant for businesses are: (i) explicit consent of the affected data subject; (ii) the processing is necessary in the context of employment law; or (iii) the processing is necessary for the establishment, exercise or defence of legal claims. 19.1 What enforcement trends have emerged during the previous 12 months? Notification obligations vis--vis data subjects are covered in thesection on data subject rights below. The Federal Government and all state governments, with the exception of the Senate of the Free and Hanseatic City of Hamburg, considered the Census Act and the project to be constitutional. It also mirrors the GDPR provisions for establishing a lead supervisory authority within Germany providing that the Land in which the controller or processor has its main or single establishment is the lead supervisory authority (Section 19 of the BDSG). Germany already had a Federal Data Protection Act before the population census decision. Alternatively, presumed consent is sufficient in a business-to-business context. The German legislator is relying on Article 83(8) of the GDPR in order to justify this provision. This tracker organizes the privacy-related bills proposed in Congress to keep our members informed of developments within the federal privacy landscape. Yes; in Germany the respective data protection authorities investigate complaints made by recipients of marketing communications. With regard to the changes made to 154 other federal laws, these reportedly focus on adapting the laws to the GDPR terminology, legal bases for processing, and data subject rights. In addition, some supervisory authorities of the Lnder have issued guidelines and templates for processing records, video surveillance, and data processing agreements. ASNEF (2011 case): EU data protection law sets out an exhaustive and restrictive list of cases in which the processing of personal data can be regarded as lawful. Section 22(2) of the BDSG provides a detailed list of measures that may be appropriate, such as implementing technical organisational measures to ensure compliant processing, designating a DPO, restricting access to personal data, and pseudonymising or encrypting data, etc. More high-profile speakers, hot topics and networking opportunities to connect professionals from all over the globe. although the controller or processor does not have an establishment in a Member State of the EU or in another contracting state of the European Economic Area ('EEA'), it falls within the scope of the GDPR. Key contacts Partner, Practice Group Head Technology & Data Dr. Felix Wittern Hamburg, Germany +49 (0)40 878 869 81 14 Email Dr. Felix Furthermore, in cases of data processing for purposes of scientific or historical research and for statistical purposes, the right to rectification is limited to the extent that it is likely to render impossible or seriously impair the achievement of research or statistical purposes and such limits are necessary for the fulfilment of the research and statistical purposes (Section 27(2) of the BDSG). Data transfers to other jurisdictions that are not within the EEA can only take place if: (i) the transfer is to an Adequate Jurisdiction (as specified by the EU Commission); (ii) the business has implemented one of the required safeguards as specified by the GDPR; or (iii) one of the derogations specified in the GDPR applies to the relevant transfer. Any other private entity and all other authorities in Germany is regulated by the relevant state DPA. 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