Both controllers and processors must ensure they have appropriate technical and organisational measures to meet the requirements of the GDPR. If so, describe what details must be reported, to whom, and within what timeframe. "Data breach" is a generic term encompassing any event that results in the compromise of the security or integrity of personal data.. Nevertheless, the Baden-Wrttemberg data protection authority ('LfDI Baden-Wrttemberg') imposed a fine on a company due to a violation of Article 32 of the GDPR which LfDI Baden-Wrttemberg became aware of due to a data breach notification of the company. According to the legislative documents, this change is intended to assist with de-radicalisation programs and to enable the passing on of data from private bodies to public security agencies in these circumstances. A rise in enforcement activity by the data protection authorities is expected, e.g., in the context of the use of cookies. Subscribe to the Privacy List. Personal data must be processed lawfully, fairly and in a transparent manner. For private bodies, Germany largely retains its pre-GDPR rules regarding the duty to appoint a DPO. The data protection authority of Niedersachsen published guidance regarding transparency requirements and templates for signs (only available in German here). 2.1 Please provide the key definitions used in the relevant legislation: This means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly. Finally, the outlines of a rise in damage claims for non-material damages can be observed. The controller is responsible for reporting a personal data breach without undue delay (and in any case within 72 hours of first becoming aware of the breach) to the relevant data protection authority, unless the breach is unlikely to result in a risk to the rights and freedoms of the data subject(s). Controllers must provide certain minimum information to data subjects regarding the collection and further processing of their personal data. They investigate the use of cookies on websites pro-actively as well as upon complaints. and what issues must it address (e.g., only processing personal data in accordance with relevant instructions, keeping personal data secure, etc.)? In addition, some supervisory authorities of the Lnder have issued guidelines and templates for processing records, video surveillance, and data processing agreements. This blacklist lists 17 types of data processing operations which require a DPIA. The IAPPS CIPP/E and CIPM are the ANSI/ISO-accredited, industry-recognized combination for GDPR readiness. 7.9 Is any prior approval required from the data protection regulator? According to Section 37 of the BDSG, the right not to be subject to a decision based solely on automated processing granted to data subjects under the GDPR shall not apply (in addition to the exceptions included in the GDPR itself) if the decision is made in the context of providing services under an insurance contract and either of the following applies: Section 37(2) of the BDSG clarifies that decisions based solely on automated processing may be based on the processing of health data. The adequacy agreement with the EU, which allows data to flow between Britain and Europe, will be "at the heart" of the finalised . If any such supervisory authority determines that data protection legislations have been violated, it has in addition to the powers stipulated in the GDPR the power to inform data subjects concerned, report violations to other responsible bodies for prosecution or punishment, and notify serious violations to the trade supervisory authority to take measures under trade and industry law. The scope of the right of access is still debated in Germany. 10.1 Please describe any legislative restrictions on the sending of electronic direct marketing (e.g., for marketing by email or SMS, is there a requirement to obtain prior opt-in consent of the recipient?). 2022 International Association of Privacy Professionals.All rights reserved. Member States cannot add new . Full Time position. monitor and enforce the application of the BDSG and other data protection legislation; promote awareness in relation to data processing; cooperate with other supervisory authorities; and. for public bodies to perform their tasks; to exercise the right to determine whether access shall be allowed or denied; or. Looking for a new challenge, or need to hire your next privacy pro? International data transfer will require prior approval from the competent data protection authority unless they have already established a GDPR-compliant mechanism as set out above for such transfers. the type of processing, in particular, where using new technologies, mechanisms or procedures, involves a substantial risk to the legally protected interests of data subjects. 3.1 Do the data protection laws apply to businesses established in other jurisdictions? On 28 April 2022, the CJEU ruled that the GDPR does not preclude national legislation which allows a consumer protection association to bring legal proceedings in the absence of a mandate and independently of the infringement of specific rights of data subjects, for infringements of laws protecting personal data (Judgment in Case C-319/20 Meta Platforms Ireland Limited, formerly Facebook Ireland Limited, v Bundesverband der Verbraucherzentralen und Verbraucherverbnde Verbraucherzentrale Bundesverband e.V. The Labour Court Dsseldorf, however, ruled in 2020 that a company must pay 5,000 to a former employee because according to the court the company's response was late and not comprehensive to a subject access request (available in German here). The TTDSG contains rules, inter alia, regarding tracking technologies. There are several noteworthy cases, where the German data protection authorities exercised their powers by imposing high fines. Section 4 of the BDSG contains specific rules relating to video surveillance of publicly accessible areas. 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. However, controllers can challenge such measure in front of a court. There are essentially no variations from the GDPR. According to their report for 2014, the Data Protection authority of the German state of Berlin levied administrative fines in the amount of total 88.205. These provide helpful practical guidance on: Some of them are currently subject to revision, partly due to a change of the legal situation. An English translation of the BDSG is available here: (Hyperlink). On a federal level Bundestag and Bundesrat enacted the Bundesdatenschutzgesetz (Federal Data Protection Act). 7.3 On what basis are registrations/notifications made (e.g., per legal entity, per processing purpose, per data category, per system or database)? Storing or using the data collected is permitted only if necessary to achieve the intended purpose and there is no indication of overriding legitimate interests of data subjects. Such protections include technical measures (e.g., pseudonymising personal data or encrypting it whilst in transit), contractual measures and organisational measures. 12.1 Please describe any restrictions on the transfer of personal data to other jurisdictions. 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. There are limits on the purposes for which CCTV data may be used regarding personal data, as its processing always requires a legal basis according to the GDPR. There is no obligation in Germany for businesses to register with or notify the data protection authority, or any other government body, of its processing activities. The GDPR in Germany. The new SCCs published by the European Commission on 4 June 2021 replace the Standard Contractual Clauses adopted under the Data Protection Directive (the 2010 SCCs). In addition to a DPA on the federal level (" Federal DPA . Yes; in Germany, cookies remain a focus for the data protection authorities. GDPR is a comprehensive privacy legislation that applies across sectors and to companies of all sizes. There are several authorities responsible for data protection in Germany. Join us in Munich to make lasting connections with peers, regulators and data protection experts. Advising on the transfer of various data categories to third . The global standard for the go-to person for privacy laws, regulations and frameworks, The first and only privacy certification for professionals who manage day-to-day operations. in the event that the data subject's request for performance is not granted in full, the decision is based on the application of binding rules of remuneration for therapeutic treatment and the controller takes suitable measures to safeguard the data subject's legitimate interests, such as granting the right to obtain human intervention on the part of the controller, to express their point of view and to contest the decision. 7.2 If such registration/notification is needed, must it be specific (e.g., listing all processing activities, categories of data, etc.) However, it was emphasised that when determining the fine, it was considered that the company had co-operated fully and had stopped the non-transparent data comparison immediately after the data protection authority took its first action. Germany already had a Federal Data Protection Act before the population census decision. In general, there is no requirement to limit the scope of a whistle-blower hotline in Germany. Processing and freedom of expression and information. Review upcoming IAPP conferences to see which need to be included in your schedule for the year ahead. 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. 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). It replaces the Data Protection Directive 1995/46. The Second Data Protection Adaptation Act introduced the following substantial amendments to the BDSG: Under the BDSG, private bodies that permanently employ at least 20 persons dealing with the automated processing of personal data are required to appoint a data protection officer ('DPO'). Section 22(2) of the BDSG lists the safeguards mandated by Article 89(1) of the GDPR to protect the rights and freedoms of the data subjects. The federal regulator for data protection remains the BfDI in Bonn. Recognizing the advanced knowledge and issue-spotting skills a privacy pro must attain in todays complex world of data privacy. Data subjects have the right to be provided with information on the identity of the controller, the reasons for processing their personal data and other relevant information necessary to ensure the fair and transparent processing of personal data. A single Data Protection Officer is permitted to cover a group of undertakings provided that the Data Protection Officer is easily accessible from each establishment. Noerr, Julian Monschke Therefore we always treat your personal data confidentially and in accordance with the legal data protection regulations as well as our data privacy policy. Despite the fact that the BDSG does not contain any derogations from the GDPR in order to reconcile the right to data protection with the right to freedom of expression and information as permitted by Article 85 of the GDPR, Germany still provides for special rules for the processing of personal data by the media. In a case where a form of processing is likely to result in a high risk to the rights and freedoms of an individual, the controller shall carry out an assessment in advance regarding the impact of the envisaged processing operations in order to protect the personal data and consult with the supervisory authority. Right protecting against solely automated decision-making and profiling. Another data protection authority imposed a fine of over EUR 900,000. Another common option is the use of Standard Contractual Clauses (SCCs). None of the German supervisory authorities have issued any 'whitelists' under Article 35(5) of the GDPR to date. Germany has been and still is the forerunner on privacy and data protection law. Europes top experts predict the evolving landscape and give insights into best practices for your privacy programme. Notably, the Lnder supervisory authority shall advise and support the DPO to meet their typical needs, and may demand the dismissal of a DPO if he/she does not have the expert knowledge needed to perform his/her tasks or if there is a serious conflict of interests as referred to in Article 38(6) of the GDPR (Article 40(6) 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. The legislative documents also mention combating pandemics as a significant public interest. In the previous 12 months, further fines in Germany represent the enforcement trend in Germany. This page was last edited on 3 November 2022, at 13:49. Yes. The controller must determine (i) whether there is a legal basis under the GDPR to disclose the data. IAPP Data Protection Intensive: Deutschland 2022, is two days of in-depth learning and networking for the DACH data protection community. 7.6 What are the sanctions for failure to register/notify where required? 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. Data controller:There are no variations from the GDPR. Section 28(4) of the BDSG provides that in the case of data processing for archiving purposes in the public interest, the right to restriction of processing does not apply as far as it renders impossible or seriously impairs the achievement of the archiving purposes, and the limitation is necessary to fulfil those purposes. 7.10 Can the registration/notification be completed online? the right of access 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. The negotiating parties shall comply with Article 88(2) of the GDPR. GDPR is a comprehensive privacy legislation that applies across sectors and to companies of all sizes. 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. 1.4 What authority(ies) are responsible for data protection? We provide services for hundreds of thousands of organizations, including enterprises, educational institutions, and government agencies in over 190 countries. The law is significant because Germany is the first Member State to issue its implementing law. If so, describe what details must be reported, to whom, and within what timeframe. Pursuant to the BDSG, controllers and processors must appoint a Data Protection Officer, especially if they constantly employ at least 20 persons dealing with the automated processing of personal data (e.g. Finally, consent shall be given in written or electronic form, unless a different form is appropriate because of special circumstances. GDPR is broad in scope and uses broad definitions. 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. Social Democrat MP Falko Mohrs said the new bill helps make the legal situation in Germany "clearer and more consistent" as requirements were previously split between the Telemedia Act and the Telecommunications Act.Full Story. Since data protection law is fully harmonised in Union law, in most cases brought before German Constitutional Courts the Articles 7 and 8 of the Charter of Fundamental Rights of the European Union might be interpreted before the German fundamental right to Informational self-determination (Article 2 Section 1 in conjunction with Article 1 Section 1 of the Basic Law). A data subject has the right to obtain from a controller the following information in respect of the data subjects personal data: (i) confirmation of whether, and where, the controller is processing the data subjects personal data; (ii) information about the purposes of the processing; (iii) information about the categories of data being processed; (iv) information about the categories of recipients with whom the data may be shared; (v) information about the period for which the data will be stored (or the criteria used to determine that period); (vi) information about the existence of the rights to erasure, to rectification, to restriction of processing and to object to processing; (vii) information about the existence of the right to complain to the relevant data protection authority; (viii) where the data were not collected from the data subject, information as to the source of the data; and (ix) information about the existence of, and an explanation of the logic involved in, any automated processing that has a significant effect on the data subject. 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