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The Conference of Independent Data Protection Authorities of the Federal and State Governments recently assessed the relationship between the new General Data Protection Regulation and the existing Telemedia Act (TMG). In the opinion of the data protection conference, the General Data Protection Regulation applicable from 25 May 2018 would completely replace the previous provisions of the Telemedia Act on web tracking.

Bitkom criticizes position of data protection conference on web tracking

The Conference of Independent Data Protection Authorities of the Federal and State Governments recently assessed the relationship between the new General Data Protection Regulation and the existing Telemedia Act (TMG). In the opinion of the data protection conference, the General Data Protection Regulation applicable from 25 May 2018 would completely replace the previous provisions of the Telemedia Act on web tracking.

 

From the point of view of Germany's digital association Bitkom this interpretation is wrong and the time of the statement is extremely unfortunate. "This interpretation of the legal situation a few weeks before the General Data Protection Regulationcomes into force comes at an inopportune moment for companies," says Susanne Dehmel from Bitkom's management, where she is responsible for legal affairs and security. "Website operators would have to change their previously legitimate processes within a very short time. This is hardly affordable and the supervisory authorities should also be aware of this."

 

Legally, web tracking falls within the scope of both the General Data Protection Regulation and the E-Privacy Directive. The E-Privacy directive is currently being revised in Brussels and is intended to take on the character of a European regulation, which will reduce the scope of the member states to a minimum. Against this background, German lawmakers have so far maintained the national TMG regulations. The position of the Conference of Independent Data Protection Authorities of the Federal and State Governments now states that website operators require the consent of Internet users in any case before they can track their surfing behaviour or create user profiles.

 

According to the Telemedia Act, it is in many cases sufficient to make the use of tracking transparent and to give users the opportunity to object to tracking (opt-out). However, in contrast to the Conference of Independent Data Protection Authorities of the Federal and State Governments, many legal experts still see scope for using cookies or similar tracking tools on the basis of the legal provisions, for example in the case of legitimate provider interests.

 

From Bitkom's point of view, the  position creates additional legal uncertainty a few weeks before the General Data Protection Regulation applies and only months before the completion of the e-privacy regulation. "In the short time available, many small and medium-sized enterprises in particular will not be in a position to make all the necessary adjustments," says Dehmel. This threatened trouble with the supervisory authorities and warnings under competition law. "The interpretation of the supervisory authorities puts many companies in a very difficult situation without need."

 

In a recent statement, Bitkom presented its criticism of the position of the Data Protection Conference on the applicability of the Telemedia Act. The statement is available for download here.

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