Privacy & Information Security Law Blog

On September 20, 2010, the German government under the leadership of the Federal Minister of the Interior held a summit on “Digitization of Cities and States - Opportunities and Limits of Private and Public Geo Data Services.”  Approximately 50 experts attended, including the Federal Minister of Food, Agriculture and Consumer Protection, the Federal Minister of Justice and representatives from various companies, such as Deutsche Telekom, Google, Microsoft, Apple Inc., OpenStreetMap and panogate.  Numerous data protection authorities attended as well, including the Federal Commissioner for Data Protection and Freedom of Information, the Chair of the Düsseldorfer Kreis and the DPA of Hamburg.  The discussions at the summit were based on a discussion paper issued by the Federal Minister of the Interior.

Data Protection Code

The meeting resulted in a suggestion that industry should propose a self-regulatory code (the “Code”) for geo data services that would then be agreed upon with the Federal Commissioner for Data Protection and Freedom of Information and the state DPAs.  The Code would contain privacy-friendly standards and rules applicable to the collection and use of geo data (e.g., Google Street View or Sightwalk) and would partly replace certain legal regulations.  According to the discussion paper, the Code should include the following concepts:

1. Service providers should commit to establishing privacy-friendly default settings (Privacy by Default).
2. The rights of individuals should be protected in the same way by comparable services.
3. The public must be educated on where and how the services might affect their personal rights.  This requires full transparency on the part of service providers, who must inform the public, in a clear and visible way, about the collection, processing and storage of the data (including any combinations of the above), as well as any intention to link the data.
4. Service providers must inform individuals about their rights at a location that is easily accessible and indicate where they can execute their rights, which should be easily accessible both online and offline.
5. Simply publishing images of houses does not generally create a legitimate interest for objecting to the processing or deletion of the data.  A legitimate interest may, however, be found on a case-by-case basis in certain circumstances.  Such circumstances may include the protection of the personality of an individual or security reasons.
6. Images of faces or license plates, in the context of geo data services, should not be posted online.  The principle of freedom of the press should be considered.
7. In cases where conflicting legitimate interests exist for not only the publication of data but also the deletion of the data, appropriate procedures must be created to ensure the interests are properly balanced against each other.
8. If there is a legitimate interest in the publication, there must be a corresponding right to have the data deleted afterward.  This includes the deletion of all stored data to the extent it constitutes personal data.  In cases where the deletion would entail a great deal of effort, the data should not be posted online in the first place.

The paper further states that if industry does not produce such a Code before the German IT summit on December 7, 2010, the legislature must enact relevant provisions by law to cover the objectives outlined in the discussion paper.  The German Federal Association for Information Technology, Telecommunications and New Media (“BITKOM e.V.”) is responsible for coordinating the drafting of the Code.

Draft Law

In addition, the Federal Minister of the Interior announced that a draft law to regulate of the use of geo data services will be issued by December 7, 2010.  The draft law would provide a “bright line” standard for cases involving companies that create personal profiles or link data that may pose risks to individual rights.  An exception for profiling may only be possible with explicit, written consent (similar to the regulations in the Telecommunications Act regarding geolocation data).

DPA Joint Press Release

On September 22, the DPAs who attended the summit issued a joint press release indicating their agreement with the draft law, and that they are pleased the Minister is considering a regulation to define the mandatory minimum requirements for the processing of personal geo data.  The new law must, however, ensure adequate protection of the right to informational self-determination.  A commitment on the part of industry (Data Protection Code for geo data services) cannot replace legal requirements.  Furthermore, the DPAs stated that when the Federal Government sets forth the draft law, the following requirements must be met:

1. A general right to object to the publication of geo-type personal data on the Internet must be created.
2. In order to make the process for objecting as simple as possible with respect to bureaucracy and the protection of the data, a register for all objections must be established and maintained by an independent, trusted entity.
3. The Code must be binding on the entire industry.
4. Effective sanctions for infringements of the self-regulatory regime must be foreseen.
5. The Code must cover previously negotiated outcomes, which some DPAs have already reached with various relevant service providers, including Google Street View.