The German Data Protection Conference ('DSK') announced, on 20 December 2021, that it had published a guidance on the Federal Act on the Regulation of Data Protection and Privacy in Telecommunications and Telemedia ('TTDSG'), which entered into force on 1 December 2021. In particular, the DSK noted that the guidance offers operators of websites, apps, and smart home applications assistance in the implementation of the new provisions of the TTDSG, and that the same also provides citizens with an overview of the changed legal framework.

Moreover, the guidance, among other things, clarifies the interplay between the TTDSG and the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR'), noting that, in light of Article 95 of the GDPR, Section 25 of the TTDSG takes precedence over the provisions of the GDPR insofar as personal data is processed when storing information on individuals' terminal equipment, or accessing information stored therein. However, the guidance further specifies that for the subsequent processing of personal data, obtained through the use of cookies or similar technologies, the provisions of the GDPR must be complied with.

In addition, the guidance provides for an explanation on the requirement for valid consent under Section 25(1) of the TTDSG, including on the bundling of consents under the TTDSG and the GDPR. Notably, the guidance contains clarifications on the meaning of the two exceptions to the consent requirement pursuant to Section 25(2) of the TTDSG. Further to this, the guidance highlights, among other things, that the 'absolute necessity' criterion refers exclusively to the functionality of the telemedia service as such, and notes that said criterion has also a temporal (time of the storage, duration of cookies), content-related (content of cookies), and personal-related (who can read the information) dimension.

Lastly, the DSK stated that a public consultation process will be conducted on the guidance in question, the details of which are expected to be announced in January 2022.

You can read the press release here and the guidance here, both only available in German.