Stephan Merz brings an update on the new German privacy law.

In my last report (DMI July), the decision had been made about the new German privacy law – it was only a question of the details.

And it happened as predicted: In the final session of the last election period, the ‘old’ German Bundestag passed the new law which came into effect on September 1. After constant back-and-forth debate, it is not surprising that neither consumer protection groups nor trade associations are happy with the final version, hastily cobbled together.

Based on a lot of misinformation, there seems to be much confusion about its effects among international mailers and service companies. Even in Germany there is a lot of uncertainty, as the devil is in the detail. So it is time to summarise the generalimplications again.

In general, we have a change from opt-out to opt-in for the receipt of postal mailings and the use of postal addresses. It is a significant change for the industry, but there is a transition period of three years for data collected before September 1 for advertising activities, and only one year for market research purposes. So, from September 2012 onwards, full opt-in will be required.

In addition, the new law states five exceptions for non-sensitive data for advertising purposes:

1. Addresses can still be used for advertising for own purposes – mailings to own clients for similar offers are still allowed without opt-in.
2. Addresses taken from generally accessible directories can still be used for advertising. These can be, for example, address directories, industry registers and similar. Storing additional information to these is also allowed.
3. B2B advertising: Sending mailings to a business and even personalised mailings to a named decision-maker are still allowed; but they must be for a business purpose.
4. Advertising for charities and non-profit organisations was specified at an early stage as an exception to the new law.
5. And finally, very relevant for the traditional list business is the exception based on the indication of the data source on the mail piece. This can be the documented and transparent transmission of data with indication of the initial data source. And in case of commissioned data processing – the mailer never receives the address files in-house – the responsible organisation needs to be identifiable on the mailing. This latter regulation allows recommendation mailings, all kinds of inserts and finally traditional list broking.

For transparent transmission of data, the delivery chain must be stored for two years by both the owner and the user!

So, in general, the new law does not bring the dramatic changes we had expected a year ago. Nevertheless, the law currently has an impact on our industry simply because of a ‘legal uncertainty’. Some parts of the new law are quite general and intentionally leave room for answers to be given by case law in the coming months. We have even seen different interpretations of paragraphs by specialist lawyers. So it would be wise for everybody mailing into Germany to check the possible impact on their activities. The coming months will reveal whether the new coalition parties – the Christian Democrats and Free Democratic Party – will once again debate this law.