The TTDSG and its impact on affiliate tracking

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On 1st December 2021, a new law will be enacted in Germany to close the gap between ePrivacy and GDPR.

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On 21st May 2021, the German parliament (Bundestag) passed the new "Act to Regulate Data Protection and Privacy in Telecommunications and Telemedia" (TTDSG). 

The TTDSG combines existing regulations on data protection under the General Data Protection Regulation (GDPR) and the Telemedia Act (TMG). These regulations remain in force and the case law developed so far also continues to apply.

What does the TTDSG mean for affiliate marketing?

The TTDSG intends to clarify the ambiguities between the Privacy and Electronic Communications Directive 2002/58/EC on Privacy and Electronic Communications (“ePrivacy Directive”), the GDPR and the current German legislation regarding data protection and the use of cookies.

For context, the European Commission has been working for some time on a new draft EU regulation on the use of cookies. The current EU Directive, which was enacted in 2009, had to be implemented by all member states, but there were differences in the implementation.

Until May 2020, it was disputed in Germany whether or not an opt-in (consent) or opt-out was required for cookies. The decision of the German Federal Court of Justice (Bundesgerichtshof) on 28th May 2020 ("Planet 49") clarified that consent in the form of an opt-in is required and a simple opt-out is not enough.

Following on from Planet 49, section 25(1) TTDSG reiterates the obligation set by the case law to obtain the user's consent before setting a cookie or similar methods of storing information.

The TTDSG applies to Awin and the publishers and advertisers Awin works with. It applies to the setting of Awin’s cookies or similar technologies on publisher and advertiser websites.  

However, the enactment of the TTDSG does not mean any changes for Awin.

Since Awin cannot interact directly with our partners' website visitors, we have to oblige our advertisers and publishers in the respective agreements to obtain cookie consent - for themselves as well as for and on behalf of Awin. We have required our publishers to obtain cookie consent since 2012, so with the Planet 49 ruling, the TTDSG has only reinforced Awin’s position on obtaining consent when using cookies or similar technologies for tracking. 

What can we expect in the future?

The TTDSG is a national law. When the new EU regulation on the use of cookies comes into force, it will have to be reassessed whether and how the legal situation will change. An EU regulation is a directly applicable law in all EU member states, which will then supersede the TTDSG in the hierarchy of laws. 

What does the TTDSG mean for Awin and its partners?

The TTDSG does not change anything for Awin and its partners. Awin’s tracking cookies still require consent and such consent must be obtained in line with the GDPR requirements for valid consent.

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