Germany Publishes New Draft Rules for Cookies and Similar Technologies

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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