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If the provider intends to use an automated process that will allow the identification of the user, then this information has to be provided when data collection commences, and the user must at any time have access to this instruction.This provision of the TMA has been interpreted as applying only to contract and utilization data, thus leaving content data under the governance of Section 4(3) of the FDPA.The German Federal Data Protection Act has separate provisions for data processing in the public and private sectors.In addition, Germany has special privacy provisions for electronic information and communication services (telemedia) and yet another set of privacy rules for the providers of services that transmit electronic signals.Some German experts find that this complexity interferes with the requirement of transparency in that it keeps consumers from being aware of their rights and from exercising them.In keeping with the Directives, Germany generally prohibits the collection and use of personal data unless the law specifically permits this or the data subject has given his or her informed consent.The thus-created profiles must be identified by a pseudonym, and the identity of the user may not be revealed. Other data, particularly content data, fall under the consent requirements of sections 28 through 30 of the FDPA, if they are collected by online service providers.In their current form, these provisions were introduced through the 2009 reform of the FDPA, and their complexity is legendary. Generally, they allow certain commercial uses of data, including “list-making” and “scoring,” albeit under numerous safeguards.
In Germany, data protection has constitutional dimensions that flow from the guarantees of human dignity and personhood.From these, the Federal Constitutional Court (FCC) crafted the right of informational self-determination that permits the processing of personal data only if authorized by statue or by consent of the data subject.In 2008, the FCC expanded these principles by articulating a constitutional guarantee of the confidentiality and integrity of IT systems.They apply therefore, to Facebook and other social media. Utilization data are the personal data that a telemedia service provider may collect and use to facilitate use of the service and for accounting purposes.
The service provider may use these data to create user profiles for market research and advertising, unless the user objects after having been duly informed.Germany transposed the European Union (EU) Data Privacy Directive (Directive 95/46) through the TMA as well as the FDPA, making use of the Directive’s permission to enact sector- specific legislation. German also made use of the Directive’s permissible “margin for maneuvering” by crafting some detailed legal concepts that are not contained in the Directive but adhere to its spirit. The German legislation also deviates from the wording of the Directive but not its meaning by adhering to pre-existing German terminology and concepts.