German TTDSG: Navigating Cookie Compliance in Germany

For websites targeting German users, complying with the Telecommunications Telemedia Data Protection Act (Telekommunikation-Telemedien-Datenschutz-Gesetz, or TTDSG) is essential. This law, which came into effect on December 1, 2021, has specific requirements for cookie consent that go beyond the general GDPR framework.

What is the TTDSG?

The TTDSG consolidates and replaces previous telecommunications privacy regulations in Germany, including parts of the:

• Telecommunications Act (TKG)
• Telemedia Act (TMG)

It implements the European ePrivacy Directive into German law and harmonizes it with GDPR requirements, creating a comprehensive framework specifically for:

• Electronic communications
• Telemedia services
• End-user terminal equipment (including cookies and similar technologies)

Key TTDSG Cookie Requirements

Section 25 TTDSG: The Cookie Provision

The most relevant part for website operators is Section 25 TTDSG, which requires:

1. Explicit prior consent for storing or accessing information on user devices
2. Clear and comprehensive information about data processing
3. Documentation of consent for accountability
4. Simple mechanisms to withdraw consent at any time

The Strictly Necessary Exception

Like the ePrivacy Directive, the TTDSG provides a narrow exception for technically necessary cookies. A cookie is considered strictly necessary if:

• It is absolutely essential for providing a service explicitly requested by the user
• The service cannot function without the cookie
• It serves no additional purpose beyond enabling basic functionality

Common examples that qualify for this exception include:

• Authentication cookies for logged-in users
• Shopping cart cookies on e-commerce sites
• Security cookies that protect user accounts
• Language preference cookies (with limitations)

German Regulatory Enforcement

Competent Authorities

In Germany, enforcement of the TTDSG is primarily handled by:

• The Federal Commissioner for Data Protection and Freedom of Information (BfDI)
• State data protection authorities (Landesdatenschutzbehörden)
• The Federal Network Agency (Bundesnetzagentur) for certain telecommunications aspects

Notable Enforcement Actions

German authorities have already taken action against non-compliant cookie practices:

• In 2022, the Bavarian DPA (BayLDA) fined a website operator €5,000 for using Google Analytics without proper cookie consent
• The Berlin Commissioner issued warnings to multiple companies using cookie banners that nudged users toward "Accept All" options
• The Hamburg Commissioner imposed a €35,000 fine on a retailer for placing marketing cookies without proper consent mechanisms

Specific German Compliance Challenges

Legitimate Interest Is Not Valid for Cookies

Unlike some interpretations of GDPR in other countries, German authorities are clear that:

• Legitimate interest cannot be used as a legal basis for cookie placement
• Explicit consent is the only valid legal basis for non-essential cookies
• This applies even for analytics cookies that some other EU countries treat differently

Design Requirements for Cookie Banners

German authorities have established specific design criteria for cookie consent mechanisms:

• "Accept" and "Reject" buttons must be equally prominent
• The "Accept All" option cannot be visually emphasized over rejection options
• Multi-layer consent interfaces must not obscure rejection options
• "Nudging" designs that encourage acceptance are considered non-compliant
• Consent interfaces should be available in German for German audiences

Documentation Requirements

Under TTDSG and GDPR, German organizations must maintain comprehensive documentation:

• Detailed records of consent (timestamp, scope, identity)
• Technical implementation of the consent mechanism
• Information provided to users prior to consent
• Methods for consent withdrawal
• Evidence of regular compliance reviews

Practical Implementation Steps

1. Conduct a TTDSG-Specific Cookie Audit

Go beyond standard cookie scans to:

• Identify all technologies accessing user devices
• Document precise purposes of each technology
• Assess the necessity claim for essential cookies
• Verify third-party cookie providers comply with German law

2. Implement Compliant Consent Management

Your consent management platform should:

• Block all non-essential scripts and cookies by default
• Provide equally accessible accept/reject options
• Support German language for consent interfaces
• Store consent records securely for documentation
• Allow for simple consent withdrawal

3. Review and Update Privacy Documentation

Ensure your privacy documentation includes:

• Specific information required by TTDSG
• Clear explanations of cookie purposes
• Identification of all third parties
• German-language versions for German users
• Regular updates as your website technologies change

TTDSG vs. Other EU Member States

The TTDSG implementation has some notable differences from other EU countries:

Compared to France (CNIL Guidelines)

• German authorities generally take a stricter view on analytics cookies
• CNIL allows certain audience measurement with specific safeguards
• Both require equally prominent accept/reject options

Compared to the UK (PECR)

• TTDSG has more specific design requirements for consent interfaces
• UK focuses more on the substance of consent than specific UI implementations
• German enforcement is generally more active in this area

Compared to Spain (AEPD)

• Both countries require explicit opt-in for analytics cookies
• Spanish authorities focus more on transparency in layered information
• German requirements emphasize equal visual prominence of choices

Future Developments to Watch

The TTDSG implementation continues to evolve through:

• Court decisions interpreting specific provisions
• Regulatory guidance from German DPAs
• The upcoming EU ePrivacy Regulation, which will eventually replace the Directive
• Technical developments like browser-based consent systems

Conclusion

Complying with the TTDSG requires careful attention to Germany's specific implementation of cookie regulations. While the law aligns with the broader ePrivacy Directive and GDPR framework, it includes nuanced requirements that demand special consideration.

For websites targeting German users, implementing a TTDSG-compliant cookie consent mechanism is not optional—it's a legal requirement with potential financial and reputational consequences for non-compliance.

By understanding these specific German requirements and implementing appropriate technical and organizational measures, you can ensure your website meets the high standards of German data protection law while providing a transparent and respectful experience for your German users.