- New German cookie rules
- CJEU: Inbox advertising only with prior consent
- German Supreme Court rulings on influencer marketing
- EDPB: Guidelines on data transfers
- Implementation of Office 365 requires works council approval
- Court of Appeals Düsseldorf
- Recommended reading in the areas of EU and German IT and data protection law
1. New German cookie rules
by Sven Schonhofen, LL.M.
The new German law on cookies, pixel, fingerprinting, and similar technologies (Cookies) – the Telecommunications Telemedia Data Protection Act (TTDSG) – entered into force on December 1, 2021. The TTDSG must be considered when setting and reading the information in Cookies. GDPR applies to the further processing of personal data in connection with Cookies. The TTDSG only provides for two categories of Cookies: (1) Cookies that require consent and (2) Cookies that are absolutely necessary for the provision of the telemedia service requested by the user. The TTDSG does not include the legal basis of legitimate interests.
Conclusion: There still is a lot of discussion on the scope of “strictly necessary Cookies”. The German supervisory authorities announced that they intend to publish TTDSG guidance in early 2022. Companies that fall in the scope of the TTDSG must review their entire Cookie setup (in particular legal bases, cookie banner and cookie descriptions).
2. CJEU: Inbox advertising only with prior consent
by Dr. Thomas Fischl
Strict requirements are placed on permissible advertising. The CJEU has now ruled (judgment of November 25, 2021, docket no. C-102/20) that inbox advertising is a violation of the ePrivacy Directive (Directive 2002/58/EC) if the owner of the account concerned has not expressly consented to this form of advertising.
Conclusion: The CJEU saw the likelihood of confusion in the case of advertisements and thus deemed such advertisements to be anti-competitive. Companies must therefore make absolutely sure that users are properly informed about the exact modalities of disseminating such advertising and must have obtained consent to receive advertising messages.
3. German Supreme Court rulings on influencer marketing
by Irmela Dölle
In three rulings dated September 9, 2021 (docket nos. I ZR 90/20, I ZR 125/20, I ZR 126/20), the German Supreme Court rendered its opinion on the question of when influencers must label their Instagram posts as advertising. Accordingly, a commercial act in favor of a third-party company is deemed to have been given if the post has an advertising surplus according to the overall impression, that is, if it emphasizes the advantages of the product without any critical distance, and if the influencer receives remuneration from the advertised company. Simply placing Tap Tags (that is, the product name, manufacturer, or brand of the product are displayed when the image is tapped) on the product image does not establish such a surplus, but the linking of the company’s website does.
Conclusion: In the case of posts for the benefit of another company for which influencers receive remuneration, those companies must pay attention to sufficient advertising labelling, especially when providing links.