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On the case - November 2008

Opt-in climate change for Germany?

Tough Data Protection laws have always meant that Germany is not an easy place for direct marketers but things could be about to get a whole lot worse.

Just like the US and UK, there have been some high profile data breaches in Germany recently. The German public was scandalized to hear that call centres were leaking personal data records – including bank details – by the thousand and some “mystery shopping” on the internet led to privacy officials being able to buy millions of details about ordinary German citizens. Separately, Deutsche Telekom was found out to be monitoring telephone records without consent.

In sharp contrast to the US approach to such breaches (public humiliation and swingeing fines) or the UK approach (Public Enquiry and more powers for the Regulators) the German Government has reacted sharply and has openly discussed and apparently agreed a measure to require an overall opt-in for all direct mail.

A Government working group is even considering not just opt-in but written consent. Higher fines for data protection breaches and much tougher controls on the list and data business are also on the agenda. The consultation period for these new measures is only a couple of months which will make it hard for the direct marketing industry to mount an effective campaign against them. Privacy campaigners are having a field day – they argue that only a complete ban on trading in personal information will solve the problem – ignoring the customer benefits that derive from data use and the fact that the illegal transactions are acts of deliberate fraud, unrepresentative of the legitimate use of data by many, including some of the country’s blue chip companies.

This issue has strong support from the German media and a head of Government steam behind it so there is pressure to take action quickly. It is possible that a law on unrelated aspects of data protection which is currently making its way through the Federal Parliament will be hijacked to introduce new restrictions on marketing data. Alternatively, the Government might commission further investigation – which would at least give direct marketers a right of reply - but that seems unlikely.

The marketing community in other countries is watching with some consternation as federal data protection commissioners consider whether the German moves should be adopted elsewhere.

German data providers may find that the climate is about to turn distinctly chilly.

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