Dr. Carlo Piltz on Legal bases of third-party services for tracking purposes

"In Germany, there is a particular need for clarification of whether or not the use of tracking technologies requires consent from data subjects. The Telemedia Act 2007, as amended in 2010 ('the TMG') still expressly permits in Section 15(3) an opt-out solution for the use of cookies and tracking technologies for the purpose of creating profiles under a pseudonym. According to Article 95 of the GDPR, in the EU, the GDPR shall not impose additional obligations on natural or legal persons when processing publicly available electronic communications services in public communication networks in matters for which they are subject to specific obligations with the same objective set out within the Directive on Privacy and Electronic Communications (Directive 2002/58/EC) ('the ePrivacy Directive'). Section 15(3) of the TMG would be considered as an implementation of this EU legislation, and would supersede the GDPR as lex specialis. But whether Section 15(3) of the TMG constitutes an implementation of the ePrivacy Directive into national law or not, is highly controversial in Germany. In the opinion of the DPAs, Section 15(3) of the TMG is no longer applicable."

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