Privacy NGO noyb filed eight complaints against German websites, complaining that the use of Google Analytics is not GDPR compliant.
The complaints have not been decided yet. However, four European data protection authorities already ruled against the use of Google Analytics in similar complaints by noyb and another (the Danish Datatilsynet) practically banned Google Analytics from Denmark in a press release. These authorities follow a coordinated approach, so other EEA and EU countries such as Germany may follow.
- Should I worry about the GDPR in Germany?
- What is the German privacy legislation?
- What is all the GDPR fuss about?
- What about the new data transfer framework?
- Final Thoughts
Let’s dive in!
Should I worry about the GDPR in Germany?
Germany is a Member State of the European Union, so the GDPR applies to all data processing activities from German companies.
The GDPR also applies to any service targeting the German market. Additionally, if your website’s target audience includes Germany and you use Google Analytics, it also applies to you.
But there’s a catch- it only applies if you process personal data. Privacy-friendly analytics tools such as Simple Analytics allow you to get valuable insights without processing any personal data. This way, you comply with the GDPR because it doesn’t apply to the data you process in the first place.
What is the German privacy legislation?
The main data protection framework is the GDPR of the European Union. This legislation is enforced by German courts and by the German data protection authority, the BfDI. Germany is also subject to Articles 7 and 8 of the EU Charter of Fundamental Rights, which protect privacy and grant a right to data protection.
Furthermore, Germany is a Member State of the Council of Europe. As such, Germany ratified the European Convention on Human rights, which protects private life and correspondence. Germany also ratified Convention 108 of the Council of Europe, which is the only binding international agreement on data protection.
What is all the GDPR fuss about?
The recent trend of decisions against Google Analytics is part of a larger legal puzzle about data transfers between the EEA and the US. So this is much bigger than individual countries such as Germany, and it’s bigger than Google Analytics too. We wrote about this extensively already on our blog, so here’s a short version.
The core issue is State surveillance. Under the GDPR, European personal data can only be transferred outside the EEA when done safely. This is difficult for US data transfers because the US legal framework allows extensive and invasive surveillance over the data of foreign citizens, including German citizens.
Two data transfer frameworks (Safe Harbor and Privacy Shield) between the EU and the US made GDPR-compliant data transfers possible in the past, but both frameworks were invalidated by the EU Court of Justice in the Schrems I and II cases. A third framework is on the way but will certainly face a legal challenge. With a Schrems III ruling already on the horizon, the future of EU-US data flows remains uncertain.
In the meantime, German companies and European companies, in general, must resort to different legal tools (typically standard contractual clauses) to lawfully transfer data to the US under the GDPR. However, the issue with these tools is that they offer no protection against State surveillance. For this reason, the Court of Justice clarified in the Schrems II case that they must be supplemented by additional privacy-safeguarding measures whenever data is sent to “unsafe” countries. This is difficult and entirely impossible for the transfers required by certain cloud-based services such as Google Analytics (we wrote about this here).
After the Schrems II ruling in 2020, most companies kept doing business as usual with US-based service providers. In the meantime, NGO noyb filed 101 complaints about data transfers against European websites using Google Analytics and Facebook Connect to nudge authorities toward stricter enforcement of the Schrems II ruling.
Data protection authorities coordinated their approach at a European level to handle the complaints coherently. As a result, the Austrian, French, Italian, and Hungarian DPAs ruled against the use of Google Analytics in very similar decisions, and the Danish DPA essentially did the same in a press release. While the decisions address an individual controller, they all set a precedent that practically amounts to a State-wide ban, as we explained here. Should the BfDI do the same, its decision would set a similar precedent for Germany.
With coordination at a European level and the influential French and Italian authorities leading the way, other DPAs will likely follow the example and adopt a harder stance on Google Analytics.
What about the new data transfer framework?
In July 2023 the European Commission adopted an adequacy decision for the US. An adequacy decision is a unilateral act that enables the free flow of personal data to a non-EU Country.
Is the whole data transfer drama over? Not really. Schrems (yup, the guy from Schrems I and II) will certainly challenge the new framework in the Court of Justice, and will likely win.
Adequacy decisions are not merely political decision. The Commission cannot sanction data flows towards a Country solely because they like it, or because it is a strategic ally. They need to make sure that the data are kept safe outside the EU, and this is not the case with the new data transfer framework in place between the EU and the US.
This is not the first attempt at a trans-atlantic data transfer framework, either. Two older frameworks (Safety Harbor and Privacy Shield) were both invalidated by the Court of Justice over surveillance concerns. This will probably happen again, as the new framework does not really offer the safeguards required to keep EU data safe against US surveillance
Long story short, Schrems III will come at some point, and the EU will be back to square one.
In the meantime, European companies must live with the uncertainty or invest in localization. And by the way, Microsoft is pouring billions into its EU Data Boundary Boundary program- they expect thousands of companies to rush to their EU-based cloud after Schrems III comes around.
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