Susanne Hornikel reports from Germany that, despite new legislation, there are still problems

After months of discussion, the new data protection law was finally passed and put into effect in Germany at the beginning of last month.
These discussions caused an immense feeling of uncertainty among companies and also consumers. Parallel to all that, Germany was suffering from the often-quoted financial crisis and the tense economic situation.

Now the law has been passed, there are lots of questions that remain open. They can only be answered in the months to come by putting the law into action. One question, for example, surrounds the correct formulation and placement of the opt-in notice. Another is the interpretation of the transitional phase . . . the subject will run and run.

Generally, German consumers react very sensibly to everything to do with their private and personal data, but the public’s lack of information
makes it almost impossible for them to spot the difference between justified consumer protection and economically legitimate measures. 

It’s interesting to see that more and more TV stations and high-circulation magazines are acting as ‘neutral experts’: they point out the consumer’s rights and recommend actions – or rather give warnings – as far as data protection is concerned.

For example, in the middle of August, the TV station RTL gave an information broadcast about ‘Modern data-hunters’. The TV station spared no expense and sent so-called ‘data-hunters’ to village fairs and supermarkets to collect addresses. Those approached were asked to participate in a lottery. In order to do so, the participants needed to give their personal data, including bank account details.

The terms and conditions – printed very small – hid the note that the subscriber was agreeing to having his/her bank account ‘completely emptied up to the last cent’! It was not mentioned to the consumers at all that participation terms and conditions are subject to legal rules and regulations and that there is a minimum font size that needs to be applied.

This test shows how easily such large amounts of data can be gathered and how simply lotteries work. Checklists with ‘ten tips for protection against data abuse’  that pillory the ‘illegal business of consumer data’ and ‘black-marketers’ have been published on the Internet. These lists warn about mail order businesses that use personal data for marketing purposes.

Criminal action
But all these public warnings, alongside the newly-passed law, do not protect against real data abuse.

There are lots of examples to prove this: thousands of client data and bank account details were recorded by a well-known German company and later found in a public waste container.

In July, NDR reporters were able to buy thousands of addresses – with birthday and bank account information – from a data merchant in Tunisia, via the Internet. The end is nowhere in sight.

The question is whether a law – either the new one or the old one – can provide a solution. The examples above are obviously criminal actions that certainly need to be pursued.

Allow me the following comparison: There are numerous cars rented out every day all over the world. From time to time, rented cars are stolen and sold abroad. But is that sufficient reason to completely forbid car rentals?

Targeted communications
Whatever happens, neither the market nor the consumers really benefit from the new legislation. Previously, it was possible in Germany to subscribe to the Robinson File (preference list) – even for particular product groups. People who were not interested in, for example, lotteries or financial services could easily communicate this to the DDV (German Direct Marketing Association). The application of this file was never made obligatory in Germany – unlike neighbouring Austria.

But obligatory application of the Robinson Files would have led to much more targeted communications and the consumer would have been able to avoid unwanted mailings.

If you switch on the TV in Germany you’re inundated with commercials. In every magazine there are so-called ‘advertorials’ besides the traditional inserts and ads that can be quite misleading, especially for older consumers.

Those magazines have never asked for permission for those ads from their readers – this is because it’s a financial necessity for companies to promote and publicise products and services.

But it seems the German data protection regulators don’t understand this is also true for direct marketing campaigns.