2 ePR. Therefore, concerning the specific situation of an existing customer relationship, there is an opt-out system for direct marketing of similar products or services.
Additional protection for the data subject in the context of electronic communications for marketing purposes will be granted by Art. 16 para. 3 ePR. Accordingly,
in the context of direct marketing calls, the phone number has to be displayed or a
special pre-fix, that indicates a marketing call, has to be used. Additional protection
for data subjects is guaranteed by general contract law. The BGH on the basis of §
7 UWG held that it is unlawful to obtain the data subject’s consent in the reception of
advertising e-mails by signing general terms and conditions.
47
2.1.5 Employees as Data Subjects
The GDPR does not contain legislation regulating the processing of personal data of
employees through electronic means. It contains an opening clause allowing member
states to provide for specific rules to ensure the protection of rights and freedoms in
respect of the processing of personal data in the context of employment, Art. 88 para.
1 GDPR.
The old BDSG regulates data processing of employees’ personal data specifically
in sec. 32. Germany made use from the opening clause in Art. 88 para. 1 GDPR, and
included sec. 26 in the new BDSG dealing with employee data protection. The new
rules are inspired by sec. 32 BDSG. In 2010 there have been efforts to introduce an
Employee Data Protection Act but the proposal
48 has never been approved.
2.1.6 Particular Rules for Personal Data of Employees
The rules do not concern a special type of processing of personal data of employees
through electronic means. They have to be applied depending on the individual case
and situation like geolocation and performance monitoring.
Sec. 26 new BDSG allows data processing for employment-related purposes and
for the detection of crimes. Employment-related purposes are given if the processing
is necessary for hiring decisions, for carrying out the employment contract or for the
termination of the employment contract, sec. 26 para. 1 s. 1 new BDSG. The
processing for the detection of crimes is legally if there is a documented reason to
believe the data subject has committed a crime while employed, sec. 26 para. 1 s. 2
new BDSG.
The processing must maintain the principle of proportionality. The general right
of privacy of the employee has to be weighed against the legitimate interests of the
employer in the processing of the employee’s data for the purposes outlined above.
47 BGH, judgment of 16 July 2008, VIII ZR 348/06 ¼ MMR 2008, 731.
48 BT-Drs. 17/4230.
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193
Additional protection for the data subject in the context of electronic communications for marketing purposes will be granted by Art. 16 para. 3 ePR. Accordingly,
in the context of direct marketing calls, the phone number has to be displayed or a
special pre-fix, that indicates a marketing call, has to be used. Additional protection
for data subjects is guaranteed by general contract law. The BGH on the basis of §
7 UWG held that it is unlawful to obtain the data subject’s consent in the reception of
advertising e-mails by signing general terms and conditions.
47
2.1.5 Employees as Data Subjects
The GDPR does not contain legislation regulating the processing of personal data of
employees through electronic means. It contains an opening clause allowing member
states to provide for specific rules to ensure the protection of rights and freedoms in
respect of the processing of personal data in the context of employment, Art. 88 para.
1 GDPR.
The old BDSG regulates data processing of employees’ personal data specifically
in sec. 32. Germany made use from the opening clause in Art. 88 para. 1 GDPR, and
included sec. 26 in the new BDSG dealing with employee data protection. The new
rules are inspired by sec. 32 BDSG. In 2010 there have been efforts to introduce an
Employee Data Protection Act but the proposal
48 has never been approved.
2.1.6 Particular Rules for Personal Data of Employees
The rules do not concern a special type of processing of personal data of employees
through electronic means. They have to be applied depending on the individual case
and situation like geolocation and performance monitoring.
Sec. 26 new BDSG allows data processing for employment-related purposes and
for the detection of crimes. Employment-related purposes are given if the processing
is necessary for hiring decisions, for carrying out the employment contract or for the
termination of the employment contract, sec. 26 para. 1 s. 1 new BDSG. The
processing for the detection of crimes is legally if there is a documented reason to
believe the data subject has committed a crime while employed, sec. 26 para. 1 s. 2
new BDSG.
The processing must maintain the principle of proportionality. The general right
of privacy of the employee has to be weighed against the legitimate interests of the
employer in the processing of the employee’s data for the purposes outlined above.
47 BGH, judgment of 16 July 2008, VIII ZR 348/06 ¼ MMR 2008, 731.
48 BT-Drs. 17/4230.
Data Protection in the Internet: National Report Germany
193