Prior Consent In Terms Of The German And European Data-Protection Law In Social Networks

In recent years, social networks develop rapidly. They have become an important tool for modern people to keep in touch with others. Many social networks provide formally "free" services to users, while the price which the users have to pay, namely they agree social network operators to analyze and use their personal data, is often overlooked. Given the large number of social network users, the significance of data protection to social networks is self-evident. The German "Federal Data Protection Act", "Telecommunications Act" and "Telemedia Act" apply to data processing in the social networks. The EU’s "Data Protection Directive" and "Data Protection Basic Regulation" which is being developed should also be concerned by the social network operators. The 5th paragraph of article 1 of the German "Federal Data Protection Act" is the central conflict rule of the German data protection law. As long as the German "Federal Data Protection Act" applies to a foreign-related case, the related provisions to data protection of the German "Telecommunications Act" and "Telemedia Act" also apply to the case. Principally territorial principle applies to the geographical scope of the German "Federal Data Protection Act". Exceptionally the country of domicile principle applies only to the cross-border movement of data within the EU and the EEA (European Economic Area). In contrast, the European Commission’s draft of the "Data Protection Basic Regulation" has prescribed the market place principle. In the German data protection law applies the principle of "prohibition with reservation of authorisation". In terms of the legitimacy of the personal data processing, if relevant legal permission can not be found, an effective consent of the person concerned is needed. Involved in the social network is the prior consent as part of the contract, rather than the traditional unilateral prior consent. Without any doubt the prior consent as part of the contract is act under the law. Thus, whether minors can independently confer prior consent in terms of data-protection law should be determined according to the rules about capacity to contract in the German "Civil Code". The prior consent in terms of data-protection law must be based on informed consent and the autonomous decision of the person concerned. But in the practice the social network users often can not free give informed consent. In addition, the prior consent in the context of social networks is usually conferred in the form of prepared and reused terms of the contract (the so-called "Data Protection Policy"). Such prepared declaration of consent can be classified as standard terms in the sense of the 1st paragraph of article 305 of the German "Civil Code". In addition to the need to meet the requirements of the data-protection law, such consent is therefore also subject to the regulation of standard terms under the civil law.