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There is, however, a strong feeling that the complexity of the German legislation is detrimental to its effectiveness.[27] In addition to the Federal Data Protection Act, the German states (Länder) have dataprotection acts.[28] These, however, are not very relevant to online privacy, because they regulate the public sector of the states, whereas the regulation of private sector activity is governed primarily by federal law.[29] Some of the states have explicit data protection guarantees in their constitutions, yet these also are of little consequence for online data protection.[30] Back to Top The privacy provisions of the FDPA address data controllers, that is entities that process (in German parlance, collect, process, and use) personal data.[31] The controllers are required to register with the pertinent state authority, [32] and this also applies to telemedia service providers.[33] Registration is required in particular for controllers who transfer data to others or conduct market research.[34] They must always register even though other controllers can avoid registration if they appoint an internal data protection official.[35] Telemedia service providers may collect and use personal data only to the extent that the law specifically permits or the data subject has given his consent.[36] Moreover, to the extent that the law permits the collection of data for specified purposes, these data may not be used for other purposes, unless the data subject has consented to other uses.[37] The law recognizes two types of special purpose data: contract data () (see below, Personal Data).[38] For all other types of personal data, particularly content data, consent is required in accordance with sections 28 through 30 of the FDPA, a set of stringent provision, particularly with respect to advertisements (see below, Personal Data).

According to section 13 of the TMA, the controller must inform the user of the extent and purpose of the processing of personal data, for any consent to be valid.

Contract data (Bestandsdaten), as defined in the TMA, are the data that are required to establish, develop, or change a contractual relationship with a telemedia service provider.

Contract data are to be collected sparingly,[44] in order to live up to the principle of data minimization.[45] They may be used only for the intended contractual purpose and must be deleted once they are no longer needed. The user’s consent, however, is required if the service provider wants to use these for other purposes, such as advertising or market research; a specific agreement from the data subject is required for these uses.[46] The provisions on contract data apply whenever a relationship is established by an online registration.

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Consent may be given electronically, provided the data controller ensures that the user of the service declares his consent knowingly and unambiguously, the consent is being recorded, the user may view his consent declaration at any time, and the user may revoke consent at any time with effect for the future.[39] These principles live up to section 4a of the FDPA, which requires consent to be based on the voluntary decision of the data subject. Many statutory exceptions allow for the use of data without consent, for various business-related purposes (see below, Personal Data).

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