Exemptions limit impact of German shift to opt-in

German Bundestag: Recent vote shifts data principle to opt-in
German Bundestag: Recent vote shifts data principle to opt-in

Last ditch lobbying by DDV, the German direct marketing association, saw a raft of exemptions included in revisions to Germany’s Federal Data Protection Act which were passed on 3rd July. The Bundestag voted for a shift to opt-in as part of an attempt to restrict “the illegal trade in personal data”. New rules come into force from 1st September 2009, albeit with a lengthy transitional period.

Even so, FEDMA, the European association of DMAs, claims “the effects will be felt by the entire DM sector, in
particular direct mail and list brokers. The new law will be burdensome for industry and will also create a significant degree of legal uncertainty.”

Data will now have to be collected with an opt-in to marketing, except if it is one of the many exempted areas.
These are B2B marketing, marketing of the company’s own products to existing customers or soliciting donations to charities and political parties. Direct marketers can avoid the opt-in if a mailing clearly states where data was first collected. Data transfers and traded address data is also exempted if stated, but transfers have to be registered centrally for two years from April 2010.

Notification to data subjects of the source of any data used in DM is a notable requirement, intended to protect
the list broking industry. Public domain data is also exempted if the data is used to market a company’s own products. Other changes include the application of the principles of avoidance and minimisation when data is processed, not just when it is captured or stored. Scoring through geographical data is also limited.

FEDMA warns that, “it is still unclear how some of the new provisions will be applied in practice and leaves room for interpretation. Initially, this will create a great deal of legal uncertainty.”

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