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Information Security Considerations (Germany) Resource ID: W-006-6878 Information Security Considerations (Germany) PAUL VOIGT, TAYLOR WESSING PARTG MBB, WITH PRACTICAL LAW DATA PRIVACY ADVISOR Search the Resource ID numbers in blue on Westlaw for more. A Practice Note describing the laws, regulations, Information security programs protect the confidentiality, integrity, enforcement practices, and local resources to and availability of data and information technology (IT) assets. However, differences in local data security laws, practices, and consider when developing, implementing, and standards create challenges for global companies, and failure to maintaining an information security program comply with them can result in enforcement action and litigation. This Practice Note explains the German laws, regulations, in Germany or as applied to data originating enforcement practices, and local resources to consider when from Germany. It addresses related EU law, such developing, implementing, and maintaining an information security program in Germany or as applied to personal data originating as the EU General Data Protection Regulation from Germany. The Germany-specific guidance in this Note may be (Regulation (EU) 2016/679) (GDPR), the EU used with the generally applicable resources listed in the Global Information Security Toolkit (W-003-1855). Directive on the Security of Network and Information Systems (Directive 2016/1148/EC) INFORMATION SECURITY LAWS AND REGULATIONS (NIS Directive), and Germany’s implementing Several German laws regulate information security and set related laws, including the Data Protection Adaptation standards, including: The Federal Data Protection Act (Bundesdatenschutzgesetz) and Implementation Act (Datenschutz- (BDSG), which protects personal data. Germany updated the Anpassungs- und Umsetzungsgesetz EU) Act to align with the EU General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR), effective May 25, 2018 (see (DSAnpUG-EU) and the NIS Directive GDPR and the BDSG). Implementation Act (NIS-Richtlinien- The IT Security Act (IT-Sicherheitsgesetz) (in German) (IT-SiG), Umsetzungsgesetz). It also discusses critical which affects telemedia services, including websites, social media, and other online services, telecommunications, and other infrastructure issues and Federal Office for critical infrastructure sectors. Germany updated this Act when Information Security (Bundesamt für Sicherheit it transposed the EU Directive on the Security of Network and Information Systems (Directive 2016/1148/EC) (NIS Directive) into in der Informationstechnik) (BSI) regulations, German law (see IT-SiG and NIS Directive Implementation). A first standards, and resources. The Germany- draft bill for the IT Security Act 2.0 is under consideration. Other legal regimes that protect at-risk data and interests (see specific guidance in this Note may be used Other Laws). with the generally applicable resources listed Data security requirements and expectations may also derive from in the Global Information Security Toolkit general compliance obligations. For example, the managing director (W-003-1855). of a German limited liability company (GmbH) has a general duty of care towards the company that may include implementing adequate © 2019 Thomson Reuters. All rights reserved. Information Security Considerations (Germany) data security measures (Section 43(1), Limited Liability Company Act zabilities to restore availability and access to personal data in a (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) (in timely manner if a physical or technical incident occurs; and German) (GmbHG)). za process for regularly testing, assessing, and evaluating the effectiveness of the organization’s technical and organizational GDPR AND THE BDSG security measures. The GDPR applies in all member states as of May 25, 2018. Germany (Article 32(1), GDPR.) enacted the Data Protection Adaptation and Implementation Act (Datenschutz-Anpassungs- und Umsetzungsgesetz EU) (DSAnpUG- For general information on the GDPR, see Practice Note, Overview EU) to update the BDSG and align it with the GDPR. The updated of EU General Data Protection Regulation (W-007-9580). For more BDSG provisions applied on the GDPR’s effective date. details on anonymization and pseudonymization as information security controls, see Practice Note, Anonymization and Pseudonymization For more information on the BDSG’s general requirements, see Under the GDPR (W-007-4624). Country Q&A, Data protection in Germany: overview (3-502-4080). IT-SiG AND NIS DIRECTIVE IMPLEMENTATION The GDPR broadly defines personal data to include any information relating to an identified or identifiable natural person (Article 4(1), The Federal Office for Information Security (Bundesamt für Sicherheit GDPR). Personal data generally includes information that alone or in der Informationstechnik) (BSI) in the Federal Ministry of the Interior in combination with other information that an organization has or is acts as Germany’s national cybersecurity authority, under the BSI likely to have access to directly or indirectly identifies an individual Act of 2009 (BSI-Gesetz) (BSIG), as amended by the IT-SiG. Germany data subject. updated the BSIG in mid-2017 to transpose the NIS Directive into German law under the NIS Directive Implementation Act The GDPR has additional rules that apply to processing special (NIS-Richtlinien-Umsetzungsgesetz). categories of personal data, which include: Racial or ethnic origin. These laws: Apply minimum information security standards to critical Political opinions. infrastructure (see Critical Infrastructure). Religious and philosophical beliefs. Update information security-related obligations under several Trade union membership. German sector-specific laws, including those that apply to public Health, sex life, or sexual orientation. websites and social media (see Sector-Specific Requirements). Genetic and biometric data. Require various sectors and service providers to notify the BSI and other agencies if a cyber incident occurs (see Cyber Incident (Article 9(1), GDPR.) Response and Data Breach Notification). The updated BDSG provisions under the DSAnpUG-EU contain some GDPR-permitted derogations, for example, relating to exceptions Critical Infrastructure from: Critical infrastructure includes facilities which are important to The information obligations (Section 33, BDSG and Article 23, Germany because a loss of their operation may lead to significant GDPR). supply shortages or endanger national security. The NIS Directive The designation of a data protection officer (Section 38(1), BDSG lays out security and cyber incident notification requirements for: and Article 37(4), GDPR). Digital service providers that offer certain information society services, including: The BDSG also contains provisions that regulate data protection zonline marketplaces; outside the GDPR’s scope of application, for example, relating to the processing of personal data by public bodies responsible for zonline search engines; and addressing criminal or administrative offenses (Sections 45-84, zcloud computing services. BDSG and Recital 19, GDPR). (Article 4(6), NIS Directive; Section 2(11), BSIG.) The GDPR: Essential services operators across various critical infrastructure Requires controllers and their data processors to: sectors, including: z ztake a risk-based approach to securing personal data; and Energy. z zimplement appropriate technical and organizational measures Transportation. commensurate with risks. zBanking and financial market infrastructures. (Article 32, GDPR.) zHealth care. Highlights several appropriate security measures, including: zWater. zpseudonymization and encryption; zDigital infrastructure. zabilities to ensure the ongoing confidentiality, integrity, (Article 4(4), NIS Directive; Section 2(10), BSIG.) availability, and resilience of data processing systems and services; 2 © 2019 Thomson Reuters. All rights reserved. Information Security Considerations (Germany) Under the NIS Directive, operators of essential services and digital zimplement appropriate technological measures to protect service providers must take technical and organizational security against service interruptions and manage security risks (Section measures that: 109(2), TKG); and Are appropriate and proportionate to the risks posed. zwarn customers if they detect that their network connections Consider the state of the art. are being used in cyberattacks, for example, as part of a botnet (for more information on botnets and other forms of malicious (Articles 14(1) and 16(1), NIS Directive; Section 8a(1), BSIG). software, see Practice Note, Cybersecurity Tech Basics: Malware and End User Attacks: Overview (W-003-4711)). German law further requires critical infrastructure providers, including essential service operators, to: Electricity supply network providers. The Energy Economy Act requires electricity supply network providers to protect the Adopt appropriate organizational and technological measures to telecommunications and IT systems necessary for safe and protect the availability, integrity, authenticity, and confidentiality of reliable electricity operations. The Federal Network Agency their IT systems and facilities that: (Bundesnetzagentur) and BSI together support standards for zalign with state-of-the-art technology; and documenting and implementing these and related information zmay leverage industry-defined sector-specific security standards security requirements. (for more information on IT baseline protection
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