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Privacy in Germany: What to Consider When Using Tracking Tools

Sep 21, 22 • Privacy LawNo Comments
Privacy in Germany: What to Consider When Using Tracking Tools

For some, the General Data Protection Regulation (GDPR) means strengthening user privacy against data-hungry companies; for others, it is bureaucratic dallying that creates unnecessary costs for innovative companies. These differing opinions collide with each other, particularly in the field of online marketing, for which a variety of tracking tools exist.

Use of tracking tools in online marketing

Tracking tools in place include e-mail tracking using web beacons (also called tracking pixels) and mouse tracking.

In the case of e-mail tracking, the advertiser receives a notification when the user opens the newsletter sent to him, the time this occurs and the corresponding IP address of the user. Likewise, the advertiser can see which link the user clicks on, allowing conclusions to be drawn about the popularity of products.

In addition, online providers are interested in whether their website is designed to be user-friendly and in which areas there is still room for improvement in order to promote their sales by making their offerings as accessible as possible. Mouse tracking tools, which track and record mouse movements, are primarily used for this purpose. With the information collected, user interactions with the particular website can be studied, and the website can be adjusted accordingly.

Advantages of tracking tools

The goal of these tools is to collect as much information as possible about user behavior on websites or when using apps. After their analysis and evaluation, the aggregated data serve as a basis for placing advertisements oriented to the interests of specific user groups.

Hurdles in data protection

Increased demands are placed on their use due to the possibility of linking different information with each other by means of tracking tools. On one hand, advertisers and website providers must provide users with comprehensive and transparent information about their use (e.g., in the privacy policy). On the other hand, consent must be obtained from the users in order to use the respective tracking tool, and this must be done prior to the data collection.

Users can revoke consent

One crucial point that makes obtaining consent in online marketing unattractive is the fact that users can revoke their consent at any time. The consequence here would be that the collected data would have to be deleted and would thus be unusable for future advertising campaigns.

Whether the requirement for consent can be circumvented by using IDs that merely provide information about users’ behavior without directly identifying them must be decided on a case-by-case basis. However, this approach can only be recommended if the data collected is anonymized to a degree that the risk of future re-identification is unlikely.

High fines for data protection violations

Since data protection violations in online marketing can be punished with fines and there is a great deal of legal uncertainty in this area, unknown tracking tools that promise a detailed breakdown of user behavior should not be used without consideration.

We can help you select a privacy-compliant tracking tool that meets your needs.

Continue reading:
Key principles of German data protection law
New Model For Fines For GDPR Violations

Olga Stepanova

Attorney Olga Stepanova works for Winheller in the areas of IT law, intellectual property and data protection. Her main fields of expertise include trademark law, copyright law, and competition law.

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