On January 12, 2021, the German Ministry for the Economy and Energy released a new draft Law on Data Protection and the Protection of Privacy in Telecommunications and Telemedia (“TTDSG” or “draft law”).  If enacted, the draft law will replace the existing data protection and privacy provisions of Germany’s Telemedia Act and Telecommunications Act (“Telemedia Act”), including provisions applicable to the use of cookies and similar technologies.  The draft text was subject to public consultation from its publication until January 22, 2021, and responses submitted during that period will now be considered by the German Federal Government in advance of a formal proposal for the Federal Parliament to consider.

Among other things, the draft law clarifies that a website operator must obtain an end-user’s consent for deploying cookies and similar technologies on the end-user’s device(s), unless the cookies or similar technologies in question are “necessary to provide the service(s) requested by the end user” (Section 22).  Moreover, the draft law expressly states that such consent must meet the standards of the GDPR.

Background

The explanatory memorandum accompanying the draft law explains that clarification is necessary because the current provisions of the Telemedia Act on cookies do not adequately transpose Art. 5(3) of the ePrivacy Directive.  Specifically, Section 15(3) of the current Telemedia Act could be interpreted as allowing for the creation of pseudonymous user profiles with cookies as long as the user did not object (i.e., opt-out).

For many years, this ambiguity led to significant confusion and controversy, with Supervisory Authorities contesting what they considered to be a liberal reading of the text.  Then, on May 28, 2020, the German Federal Supreme Court decided that the use of pre-ticked boxes to “accept” cookies is not a valid form of consent (in fact, according to the Court it never was, even before the GDPR).  The decision followed the Court of Justice of the European Union’s preliminary ruling of September 10, 2019 in the Planet49 case.

Divergences with Draft ePrivacy Regulation

While the new Section 22 of the TTDSG is in line with the existing ePrivacy Directive, it does not include all the proposed exemptions from the consent requirement included in the latest draft of the ePrivacy Regulation.  The draft ePrivacy Regulation also exempts cookies and similar technologies that are used for first-party analytics, security purposes, and software updates, and allows reusing the data collected from cookies and similar technologies for other purposes under certain conditions.  However, according to the explanatory memorandum of the draft TTDSG, it is at present impossible to estimate “whether and if” an agreement on the ePrivacy Regulation will ever be reached in the Council.  The draft ePrivacy Regulation has been stalled in the legislative process for the past four years since it was first proposed by the European Commission in 2017.

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Photo of Moritz Hüsch Moritz Hüsch

Moritz Hüsch is partner in Covington’s Frankfurt office and co-chair of Covington’s Technology Industry Group and Covington’s Internet of Things (IoT) Group. His practice focuses on complex technology- and data-driven licensing deals and cooperations, outsourcing, commercial contracts, e-commerce, m-commerce, as well as privacy…

Moritz Hüsch is partner in Covington’s Frankfurt office and co-chair of Covington’s Technology Industry Group and Covington’s Internet of Things (IoT) Group. His practice focuses on complex technology- and data-driven licensing deals and cooperations, outsourcing, commercial contracts, e-commerce, m-commerce, as well as privacy and cybersecurity.

Moritz is regularly advising on issues and contracts with respect to IoT, AV, big data, digital health, and cloud-related subject matters. In addition, he regularly advises on all IP/IT-related questions in connection with M&A transactions. A particular focus of Moritz’s practice is on advising companies in the pharmaceutical, life sciences and healthcare sectors, where he regularly advises on complex licensing, data protection and IT law issues.

Moritz is regularly listed as one of the best lawyers in the areas of IT and data protection, among others by Best Lawyers in cooperation with Handelsblatt, Wirtschaftswoche and Legal 500.

Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of…

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of advising clients on government affairs strategies concerning the lawmaking, to compliance advice on the adopted laws regulations and guidelines, and the representation of clients in non-contentious and contentious matters before data protection authorities.

Photo of Ulrike Elteste Ulrike Elteste

Ulrike Elteste is an experienced technology, media and intellectual property lawyer in the firm’s Frankfurt office. She also advises on related regulatory aspects, in particular, privacy law, financial services supervisory law, and telecommunications law. She is regularly involved in cross-border transactions with a…

Ulrike Elteste is an experienced technology, media and intellectual property lawyer in the firm’s Frankfurt office. She also advises on related regulatory aspects, in particular, privacy law, financial services supervisory law, and telecommunications law. She is regularly involved in cross-border transactions with a focus on technology or IP. Ulrike also represents clients in commercial and IP litigation.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.