D: Changes and amendments of the BDSG 2009: Consent and electronic consent to the use of personal data for advertising purposes

Category: Nachrichten, Gesetz
By: M. Belke - 2B Advice GmbH - the privacy benchmark

Amendments to the Federal Data Protection Act and the effect thereof on companies - Part 8

 

Substantial amendments and more detailed provisions have been made as regards consent and electronic consent to the use of personal data for advertising purposes. As before, written consent must be provided as a matter of principle. If the consent is to be given in writing together with other declarations (e.g. General Terms and Conditions), it must be typographically emphasized (e.g. size of text, font, formatting or a frame).

This has two objectives, which also constitute the standard for the exceptional other method of obtaining consent: on the one hand, the written form ensures that the content and scope of the consent are documented. On the other hand, the attention of the party concerned is to be drawn to the importance of the consent. To date, it has also been the case that presumed or implied consent is not sufficient, but circumstances in individual cases allow derogation from the written form requirement (e.g. telephonic or electronic consent).

 

Due to the new Section 28 (3a) BDSG new version, in the future the responsible body will have to provide the person concerned with confirmation of the content of the consent, so that the he/she can verify whether his/her consent - provided by telephone, for instance - was correctly documented. Furthermore, the ways in which electronic consent can be provided have been specified, as are the requirements that have to be fulfilled in terms of the provision and subsequent electronic storage of the consent. The responsible body must ensure in the case of consent provided by electronic means that the consent is recorded and that the person concerned can at any time access the content of the consent and may at any time withdraw its consent with effect for the future. In addition, there is a requirement that the affected party unequivocally state that he/she has consciously given his/her consent by placing a cross in a box, by separate signature or other action relating exclusively to the consent to the forwarding of its personal data for advertising purposes. The latter, in particular, was one of the requirements specified by case law to date.

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