The Data Protection Conference of the German supervisory authorities has published an orientation guide for telemedia providers (in German)
Accordingly, the supervisory authorities do not consider the provisions of the German Telemedia Act (Section 4; §§ 11 et seq. TMG) to be applicable, as the provisions of the Telemedia Act do not implement the ePrivacy Directive 2002/58/.
For this reason, the lawfulness of processing is governed by the provisions of the GDPR.
In summary, the following rules apply:
- The informed consent of the user is required before cookies are set. The conditions of consent are set out in Art. 4 No. 11 and Art. 7 DSGVO. Consent must be given explicitly, i.e. not simply by an already set “OK” in the content banner.
- Website operators must inform users in a clear, precise and easily understood language that cookies are set on the website, e.g. by a banner or active textboxes. The information must be given before the cookies are placed.
- The information must further contain detail about who is setting cookies. Where third parties set, store or gain access to information in a user’s terminal equipment via the provider’s service, exact identificationindication of the third parties must be given.
Such exceptions are shown in the following examples of this are: provision of Internet access, booking systems, web forms, and electronic shopping carts.