The TTDSG Act in Germany: What it means for you, Webgains and the affiliate marketing industry

Online privacy and data protection have been hot topics as of late. Anyone working in online marketing will undoubtedly be aware of the latest GDPR regulations, ITP updates and the crumbling of third-party cookies via Google. With this change afoot, the German Bundestag has passed the Telecommunications and Telemedia Data Protection Act (also known as the TTDSG), which became fully effective into German law on 1st December 2021.

Here at Webgains, we pride ourselves on ensuring that our data is compliant and up to date with ever-changing laws and regulations. We have always believed in creating a strong foundation from within the business to mitigate external shifts in technology and regulation, thereby minimising the impact on our partners. This is what separates us from other affiliate networks. This is what gives us the edge.

Within this article we will provide a brief overview of the TTDSG regulation; what it is, what are the consent conditions and rules and to explain how Webgains are compliant. Read on to keep up with the latest on TTDSG.

The most important thing to start with…

What will change for publishers and advertisers who are part of our network?  

The answer is simple – nothing. This is because cookies have always been set exclusively by the advertiser to trigger tracking after the site has obtained consent from the user. In contrast to other networks where, for example, cookies are already set by publishers, here at Webgains the responsibility of consent management lies on the part of the advertiser. Webgains is the data processor not the data controller. This means that the requirements for the storage of cookies by advertisers have already been implemented. All publishers and advertisers can work with us as usual without making any changes.

What is TTDSG? 

In short, TTDSG regulates privacy and data protection in Germany and makes adjustments with regard to the current cookie consent requirement. The TTDSG summarises the existing regulations on data protection from the Telemedia Act (TMG) and the Telecommunications Act.

The TTDSG comes into force because the EU Cookie Directive (“ePrivacy Directive”), as amended by the European Commission in 2009, has not been fully implemented in Germany. In Germany, there were different interpretations as to how the consent requirement for cookies was implemented by the previous regulations in the TMG. Following rulings by the ECJ and the German Federal Court of Justice (BGH) in the “Planet49” case, the legislator felt compelled to clarify the cookie opt-in, now made in the TTDSG. As a requirement by the ePrivacy Directive since 2009, service providers in Germany must now also obtain consent for the storage and reading of data from the end device. An exception exists for those cases in which this is absolutely necessary for the provision of the requested service offer. However, it is irrelevant whether it is personal data or anonymous data.

This also means that if any customers of merchant advertisers, or browsers of affiliate publishers websites pass through Germany then this new law fully applies.

How is Webgains TTDSG cookie compliant?

In 2017, before the GDPR was immediately applicable, Webgains made the decision to completely restructure the way personal data is collected and processed on behalf of the network of advertisers and publishers. More information about these decisions and measures can be found here. If advertisers or affiliate publishers were unable to adapt to these new, fully compliant circumstances, they were asked to leave our affiliate network.

Any advertiser or publisher who carries out affiliate campaigns with Webgains and adheres to the specifications of Webgains for the design of the data processing processes, is compliant with the TTDSG and the GDPR with regard to Webgains cookie tracking.

Andreas Sasnovskis, Joint Managing Director of Webgains Germany, sees the entry into force of the TTDSG as confirmation of the already long-standing development to first party cookie tracking:

Richard Oberhofer, Joint Managing Director of Webgains Germany, further comments:

Richard Dennys, Webgains’ Chief Executive Officer commented on the act:

Despite the fact that nothing is changing for advertisers and publishers on the Webgains network, we understand how important it is that everyone has a full understanding of the TTDSG Regulation, its terms and regulations of consent and how advertisers and publishers can remain TTDSG compliant. Please continue to read our overview below. 

What are the TTDSG Cookie Consent & Rules?

The new law requires websites in Germany to adapt to European cookie rules and obtain consent to cookies and other tracking technologies that store information or use data from users’ devices.

TDSG applies to organisations that operate in Germany or have a branch office. In addition, these requirements must also be observed if services or goods are offered in Germany, i.e. for all websites aimed at German users. These websites must obtain cookie consent, unless they do not use cookies or cookies strictly necessary only for the provision of the service requested by the user. For all other cookies, there must be a transparent consent actively given by the user

Dr. Stefan Drewes, Webgains’ Lawyer for Data Protection and Data Protection Officer, on the new changes:

In summary, there are only two clear categories under TTDSG: 

  • Cookies that are strictly necessary – For example, if a session cookie contributes to the secure use of a website’s offering, it may be necessary to recognise a user for a single session.
  • Consent-based cookies – Unlike necessary cookies, cookies of this type are used for other purposes that go beyond what is necessary. For example, to measure access numbers or for advertising purposes.

TTDSG Rules and Considerations

  • The legal basis of legitimate interest under the GDPR can no longer be used to justify the storage or access to the information stored in the terminal. An exception exists for the cookies, which are absolutely necessary for the provision of the service expressly requested by the user.
  • It is important to note that a maximum penalty for violations of § 24 TTDSG is only € 300,000 and/or a custodial prison sentence for exceptional violations. This refers to the unlawful processing of users’ data through the storage of cookies or the use of the stored data. The amount of the fine is decided on a case-by-case basis.

Is affiliate marketing still possible under TTDSG?

Yes, if you do your homework. According to the specifications of the TTDSG, the user’s consent is required for the storage of cookies for example, for the purposes of tracking, the calculation of a publisher’s remuneration or the compilation of statistics on the use of the offer. Here, an informed active consent of the person concerned is required. In this example, first party cookies should be used, which are set by the advertiser. The alternative of already commissioning publishers to obtain consent is highly risky and can leads to unconvincing results.

To ensure you are TTDSG compliant

While these changes may seem daunting at first glance, there are practical ways to implement the new law in your privacy policy:

  • Give users clear information about the use of cookies. Allow the user to actively accept or reject the cookies. Set cookies only after the user has consented.
  • Third-party cookies should only be set after the user’s consent. Here at Webgains, we only work with first-party cookies.
  • Cookie consent banners should use language that is easy for the average user to understand. A transparent presentation of the scope of data processing is very important.
  • The consent must be able to be revoked by the user just as easily as it has been given.

Summary

  • TTDSG entered into force on 1st December 2021.
  • Nothing will change for advertisers and publishers of our network, provided that they have already observed the recommendations of Webgains for the design of the processes.
  • The legitimate interest described in the GDPR has not yet been sufficient to justify the storage of cookies – for example, to calculate the publisher’s remuneration. This is made clear again with the new regulation.
  • The law operates in two different categories: 1) cookies, which are strictly necessary for the provision of a service offer expressly requested by the user, and 2) cookies, which are based on explicit consent.

If you have any questions about the new TTDSG law, please do not hesitate to contact your account manager or our customer support team.


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