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In­form­a­tion on Data Pro­tec­tion and Cy­ber Se­cur­ity laws from CMS ex­perts

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The content will be periodically updated by our lawyers but, given the constantly evolving laws in this area, we cannot guarantee the content is complete and accurate.

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Data Protection 

Last updated 09 October 2018

Risk scale

Laws

  • General Data Protection Regulation, GDPR (Regulation (EU) 2016/679 of 27 April 2016), in force since 25 May 2018.
  • Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG) of 30 June 2017, in force since 25 May 2018, as last amended by the Act to Adapt the Data Protection Law to Regulation (EU) 2016/679 and to Implement Directive (EU) 2016/680 of 30 June 2017 (Datenschutz- Anpassungs- und Umsetzungsgesetz EUDSAnpUG-EU).
  • Each German federal state has its own data protection law for the processing of personal data by the authorities of the German federal states (Landesdatenschutzgesetz, LDSG).
  • Numerous data protection provisions in sector-specific legislation, including the Telemedia Act of 26 February 2007 (Telemediengesetz - TMG); the Telecommunications Act of 22 June 2004 (Telekommunikationsgesetz – TKG); and social security laws (Sozialgesetzbuch I-X – SGB I-X).
  • A draft for a data protection “omnibus” law, updating the various data protection provisions in sector-specific legislation to GDPR terminology, is currently in the legislative process.

Authority

Each German federal state has a Data Protection Authority which is responsible for the enforcement of data protection laws and regulates data controllers established in the state.

Websites of the 16 Data Protection Authorities of the German federal states:

Anticipated changes to law

A draft for a data protection “omnibus” law, updating the various data protection provisions in sector-specific legislation to GDPR terminology, is currently in the legislative process.

If applicable: stage of legislative implementation of GDPR

The GDPR is fully implemented, particularly the BDSG has been updated to GDPR terminology and standards.

Concerning sector-specific legislation, see above (“Omnibus” law).

If applicable: local derogations as permitted by GDPR

Germany derogates from the provisions of the GDPR in:

  • processing in the context of employment (Article 88 GDPR; Section 26 BDSG)
  • processing special categories of data (Article 9 (4) GDPR; Section 22, 27, 28 BDSG)
  • safeguards and derogations to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes (Article 89 GDPR; Section 27 e seqq. BDSG).
  • restrictions on data subject rights (Article 23 GDPR; Section 32 et seqq. BDSG)
  • obligations of secrecy (Article 90 GDPR; Section 29 BDSG)
  • designation of Data Protection Officers (Article 37 (4) GDPR, Section 38 BDSG)
  • credit information and scoring (Section 30 et seq. BDSG)
  • public video surveillance (Section 4 BDSG)
  • processing for other purposes (Article 6 (4) GDPR, Section 24 BDSG)
  • Profiling (Art. 22 (2) GDPR, Section 37 BDSG)
  • sanctions to other infringements of the GDPR, which are not subject to administrative fines (Section 41 et seqq. BDSG).

Scope

BDSG:

The BDSG applies when:

  • The processing of personal data is realized by federal public authorities or public authorities of the German federal states, if the data protection laws of the German federal states do not apply,
  • the processing is realized by a private body and is carried out entirely or partly by automatic means or otherwise forms part of or is intended to form part of a filing system and the private body processes data in Germany, in the context of the activities of a German branch or falls within the scope of the GDPR,
  • the GDPR does not prevail the national provisions in the BSDG, and
  • other sector-specific data protection laws do not take precedence over the BSDG.

LDSG :

  • The data protection laws of the German federal states intend to protect personal data from being processed and used by public authorities of the German federal states.

TMG :

  • Governs all electronic information and communication services on German territory, except mere telecommunication and broadcasting (telemedia services).
  • Sets out data protection duties for providers of telemedia services.

Other sector-specific data protection laws:

  • Apply to the processing of personal data on German territory in various sectors.

Penalties/enforcement

Derogation from the GDPR under national law

  • The BDSG determines that the provisions of the Administrative Offences Act apply accordingly to violations of the GDPR.
  • The BDSG furthermore stipulates penal provisions for particular violations of the GDPR.
  • In addition to the administrative fines under the GDPR, the BDSG provides for fines (up to EUR 50,000) for violations of Section 30 BDSG (consumer loans) – e.g. for anyone who fails to handle an information request appropriately in the context of consumer loans.

Registration / Notification

No derogation from the GDPR under national law.

Main obligations and processing requirements

Derogation from the GDPR under national law

  • Processing in the context of employment (Article 88 GDPR; Section 26 BDSG).
  • Processing of special categories of data (Article 9 (4) GDPR; Section 22 BDSG).
  • Processing for other purposes (Section 24 BDSG).

TMG

  • Processing requirements: sector-specific processing requirements for the processing of personal data concerning electronic information and communication services carried out by the providers of telemedia services.
  • Information requirements: the TMG contains sector-specific information requirements – e.g. information and contact details concerning the company responsible for the website ("imprint").

Data subject rights

Derogations from the GDPR

  • Obligation to notify the individual – in certain cases, the BDSG exempts the data controller from its obligation to inform the individual of their rights, e.g. if the information would interfere with the establishment, exercise or defence of legal claims (provided that there are no overriding interests of the individual in the provision of the information).
  • The right to access data – the BDSG contains certain exemptions from the right to access, e.g. if such data were recorded only because they may not be erased due to legal or statutory provisions on retention.
  • The right to erasure – the BDSG exempts the controller from its obligation to erasure under certain conditions, e.g. if the erasure would involve a disproportionate effort due to the specific mode of storage.

Processing by third parties

No derogation from the GDPR.

Transfers out of country

No derogation from the GDPR.

Data Protection Officer

Derogations from the GDPR

The threshold for appointing a Data Protection Officer in Germany is lower compared to the GDPR requirements. In addition to the GDPR requirements, a Data Protection Officer must be appointed, if:

  • As a rule, at least ten persons constantly deal with the automated processing of personal data, or
  • the business is subject to a data protection impact assessment (Art. 35 GDPR) or commercially processes personal data for the purpose of transfer or anonymized transfer, or for purposes of market or opinion research – in this case the controller has to designate a Data Protection Officer regardless of the number of employees involved in the processing.

Security

No derogation from the GDPR.

Breach notification

No derogation from the GDPR.

Direct marketing

The Act Against Unfair Competition requires prior express consent of the recipient before sending marketing e-mails. An exception applies (cumulative requirements) when

  • the recipient’s e-mail address has been acquired in connection with the sale of goods or services
  • the marketer uses the address for direct advertising of their own similar goods or services
  • the recipient has not objected to this use
  • the recipient was clearly and unequivocally advised when the address was collected, and each time it is used can object its use at any time, without costs arising other than transmission costs pursuant to the basic rates.

Cookies

The TMG determines that for the purposes of advertising, market research or in order to design the telemedia in a needs-based manner, the service provider may produce profiles of usage based on pseudonyms to the extent that the recipient of the service does not object to this. 

The German Federal Ministry of Economic declared in 2014 that the European Commission considers the Cookie directive as implemented in Germany, i.e. that the cited provision does not infringe EU law. This position has however been disputed by part of the legal literature and data protection authorities.

On 26 April 2018, the Conference of the data protection authorities of the German federation and the German federal states (Datenschutzkonferenz – DSK), issued a position paper taking the view that Article 95 GDPR, which states that the GDPR does not impose additional obligations in relation to processing of personal data in connection with the provision of publicly available electronic communications services in public communication networks, does not apply to §§ 12-15 TMG, which contain provisions regarding data protection.

Therefore, the position was taken that the mentioned provision of the TMG was replaced by the provisions of the GDPR, and the use of tracking methods, e.g. via cookies, require a previous consent in accordance to Art. 8 GDPR. This position was widely criticized. In the end, before the entry into force of the ePrivacy Directive, the legal situation concerning the use of Cookies in Germany is highly insecure.

Useful links

 

Cyber Security 

Last reviewed 9 October 2018

Risk scale

Laws and regulations

  • IT-security Act of 7 July 2015 on the increase of the security of IT systems (Gesetz zur Erhöhung der Sicherheit informationstechnischer Systeme) – IT-Sicherheitsgesetz
  • Act of 14 August 2009 on the Federal Office for Information Security (Gesetz über das Bundesamt für Sicherheit in der Informationstechnik) – BSI-Gesetz
  • Regulation of 22 April 2016 on the determination of critical infrastructures according to the BSI-Gesetz (Verordnung zur Bestimmung Kritischer Infrastrukturen nach dem BSI-Gesetz) Kritis-VO
  • Telemedia Act of 26 February 2007 (Telemediengesetz) – TMG
  • Sector-specific laws with provisions on IT security, including: the Telecommunications Act of 22 June 2004 (Telekommunikationsgesetz) – TKG; and the Energy Industry Act of 7 July 2005 (Energiewirtschaftsgesetz) – ENWG

Anticipated changes to law

No major changes anticipated; EU NIS Directive has already been implemented.

Application 

BSI-Gesetz/Kritis-VO

The BSI-Gesetz and the Kritis-VO set out security obligations for:

  • critical infrastructures – sectors: energy, water, food, IT and telecommunications, health, finance and insurance, transport and traffic
  • digital service providers – online marketplaces, online search engines, cloud computing services
  • [Federal Authorities].

TMG

The TMG stipulates security obligations for providers of digital services (e.g. provision of websites, apps etc.).

Sector-specific laws

Various sector-specific laws also cover cyber security obligations, especially in the telecommunications and energy sectors.

Authority

Federal Office for Information Security / Bundesamt für Sicherheit in der Informationstechnik (BSI): https://www.bsi.bund.de

TMG and sector-specific laws: other authorities, including state authorities of the German federal states (Länder)

Key obligations 

BSI-Gesetz/Kritis-VO

Critical infrastructures must implement appropriate, state-of-the-art organisational and technical measures to avoid security incidents with their IT-systems which could affect the functioning of the infrastructure/service (minimum security requirements). They must prove that these measures fulfil the requirements at least every two years. The BSI can approve sector-specific security standards.

Digital service providers must implement appropriate, state-of-the-art organisational and technical measures to avoid risks to the security of the network and information systems they use to provide the services. These measures will be further defined by the European Commission according to Article 16 para 8 of EU directive (EU) 2016/1148.

Providers of critical infrastructures and digital service providers must notify the BSI in the event of major cyber security incidents.

TMG

Providers of digital services must implement reasonable, state-of-the-art organisational and technical measures, especially including the use of encryption, that:

  • guard against unauthorised access to the technical systems they use to provide their digital services
  • ensure that their technical systems are protected against unauthorised access to personal data
  • prevent malfunctions, including any caused by external attacks.

Sector-specific laws

The various sector-specific laws often contain provisions to take appropriate organisational and technical measures to maintain a minimum level of security and to notify authorities in the case of major security incidents.

Penalties/enforcement

BSI-Gesetz/Kritis-VO

  • Fines of up to EUR 100,000

TMG

  • Fines of up to EUR 50,000

Is there a national computer emergency response team (CERT) or computer security incident response team (CSIRT)? 

Yes. The CERT-Bund:

  • creates and publishes recommendations for preventive measures
  • points out vulnerabilities in hardware and software products
  • proposes measures to address known vulnerabilities
  • supports public agencies’ efforts to respond to IT security incidents
  • recommends various mitigation measures.

For other services – such as incident analysis – it mainly assists federal institutions.

The Bürger-CERT provides information on cyber security to private persons.

Is there a national incident management structure for responding to cybersecurity incidents?

The BSI has an IT analysis and operations centre that continuously monitors, assesses and reports on the cyber security situation and provides incident response support. If necessary, it acts as an IT-crisis centre to coordinate fast responses to major incidents.

There is also an interagency - the National Cyber-Defence Centre - that coordinates the operational cooperation of the security authorities (i.e. the police and intelligence services).

Other cybersecurity initiatives

Alliance for Cyber Security (Allianz für Cybersicherheit) is a cooperation platform for the exchange of information between the BSI, industry and science and research.

Useful links 

 

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Authors

Melanie Baltheiser
Associate
Munich
Michael Dorner
Dr. Michael Dorner
Counsel
Munich
Christian Runte
Christian Runte
Partner
Munich
Florian Schneider
Dr. Florian Schneider
Senior Associate
Hamburg
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