German Election Could Shake Up Approach to EU Data Privacy

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By Jabeen Bhatti

Privacy attorneys advising clients in Germany likely won’t have to change their guidance based on who wins the upcoming election, privacy professionals told Bloomberg BNA.

No matter which party garners the most votes Sep. 24, the next government will have limited influence on its domestic privacy regime once the European Union’s new privacy regime, the General Data Protection Regulation (GDPR), takes effect in May 2018, attorneys say.

But even though German privacy law has already been amended to make it consistent with the GDPR, there may still be some wiggle room for how the EU law is implemented and enforced. Germany has an outsize place in the EU economy and has been a strong privacy protection advocate in the bloc, the privacy pros said. In addition, how Germany approaches other EU privacy proposals could change due to new alliances that may emerge in the incoming governing coalition, they said.

The Christian Conservatives, the party of Chancellor Angela Merkel who is running for a fourth term, is among the parties most concerned that the GDPR may undermine the competitiveness of European businesses, Stefan Heumann, a board member who specializes in privacy issues at the Stiftung Neue Verantwortung think tank in Berlin, told Bloomberg BNA. “They are definitely open to rolling back or adjusting some of the data protection principles” in the GDPR, he said.

For the past year, Merkel and other party officials have been talking about the need to balance privacy with business needs to compete in the global digital economy.

The Christian Democrats, and its sister party the Bavarian Christian Social Union, are leading election polls by wide margins. If they were inexplicably to lose the election, the other parties in play would likely take a stronger stand on behalf of privacy protection, Carlo Piltz, a privacy attorney with Reuschlaw in Berlin told Bloomberg BNA.

Coalition Government

If Merkel prevails, she will still likely need to form a coalition government based on the results of the same-day election for members of Parliament.

The Social Democrats, the country’s second largest party with a strong pro-data protection platform, are likely to take second place in the election. The party has been in a coalition with Merkel for 12 years but has indicated it is unwilling to do so for another term.

That may leave Merkel forced to work with the pro-business Free Democrats—shifting the outlook away from strong privacy support. But if Merkel and the Free Democrats don’t have enough representatives voted in, they might have to employ the help of the staunchly pro-data protection Green Party. That would put competing privacy views in the same coalition.

If the Social Democrats become an opposition party, instead of part of the ruling coalition, that would likely impact still-unfinished EU-wide privacy legislation, such as the proposed ePrivacy Regulation. The regulation would expand privacy protections to all electronic communications providers.

As proposed, “the ePrivacy Regulation would be extremely disadvantages for the digital economy in the EU and, therefore, not acceptable for Angela Merkel,” Ulrich Wuermeling, a privacy attorney with Latham & Watkins in Frankfurt, told Bloomberg BNA. If the generally pro-privacy Social Democrats aren’t part of the coalition government, Merkel may be in a stronger position to seek changes to the law.

To contact the reporter on this story: Jabeen Bhatti in Berlin at correspondents@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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