Privacy & Cybersecurity Law Blog

As of September 1, 2012, all personal data in Germany may only be processed and used for marketing purposes (including address trading) with the express opt-in consent of the affected individuals. Furthermore, the consent language must have been specifically drawn to the attention of the relevant individual as part of the terms and conditions governing the use of his or her personal data.

When the German Federal Parliament amended the rules of the Federal Data Protection Act on the use and disclosure of personal data for advertising purposes in 2009, it provided companies with a three-year temporary grace period during which they could process and use existing data sets under the old law, which did not require the express opt-in consent of the individual. This grace period expired on August 31, 2012, meaning that explicit opt-in consent is now necessary.

There are a number of exceptions to this opt-in consent requirement:

• Companies and other private entities may continue to use certain types of personal data (e.g., name, title, academic degree, address, date of birth, occupation, industry or business name) without the individual’s consent for marketing. This exception applies only when a company promotes its own offers and the data were received directly from the individual or from public records.
• Advertising third-party offers is also permitted without an individual’s consent if the advertisement clearly indicates where the relevant personal data are stored and which company is responsible for the advertisement.
• Companies may market with data obtained from address-selling businesses when they log the sources of the relevant personal data and are able to provide further information about such sources. In addition, the advertisement must indicate which company initially collected the data.

It should be noted, though, that even when a relevant exception to the consent requirement applies, the individuals concerned may object to the use or transfer of their data and must be informed in the advertisement itself about their right to object.