Legal Environment
Overview on Information Technology related laws in the Federal Republic of Germany
| Telecommunication Act (Telekommunikationsgesetz (TKG)) July 31, 1996 |
| Copyright and Software Piracy |
In Germany intellectual property is protected through the copyright law (Urheberrechtsgesetz). Since the adjustment in 1993 this law also protects property rights on software.
According to the Business Software Alliance (bsa) the piracy rate for business applications decreased by 3% to 33% in 1997. losses due to piracy exceed $525.2 million in Germany in 1997. Germany's piracy rate is not the highest in Europe. Never the less, the impact on the software industry and overall economic damage is severe due to the fact, that the German software market is the biggest in Europe. According to the head organization of the chambers for industry and craft (Deutscher Industrie und Handelstag - DIHT) software piracy is responsible about 40,000 - 80,000 job lost annually. It has to be taken under consideration, that with every job lost in the software industry two additional are lost in related industries. (17)
| Data Protection |
Personal data protection is guaranteed in Germany through the federal data protection law (Bundesdatenschutzgesetz) and also through the European Commission Directive on Data Protection. Issues related to internet activities and telecommunication were introduced in August 1997 through the Information and Communication Services Bill.
| Information and Communication Services Bill (Informations- und Kommunikationsdienste-Gesetz - IuKDG) |
The IuKDG takes into account the applications of modern information and communication technology, which today increasingly pervade all spheres of life. These applications range from the use of services in the Net, such as online shopping, to the electronic handling of routine private banking transactions to communication of confidential medical data between doctors, health-insurance companies and patients to transboundary communication of transaction data in global banking.
The paramount principle of the IuKDG is: Deregulation before Regulation. The law confines itself to the statement of essential facts which require immediate regulation in order to define the legal framework required for economic development. Any existing legal uncertainty will in this way be eliminated. In addition, public interests, for example in the spheres of minors and consumer protection, will be safeguarded.
This applies above all to the provisions. Such provisions will help initiate and promote innovative developments in the legal sphere and in the field of new technologies, thus making an important contribution to broad-based acceptance of the new services and at the same time setting the stage for the development of guiding principles for international discussion.
Future developments in the field of new services and the experience gained with IuKDG need to be watched carefully, so that any adjustments and amendments to the legal framework that may become necessary can be initiated in a suitable form.
The IuKDG subsumes the legal areas that need regulation at the present time under a total of 11 articles:
| Article 1: Teleservices Act - Teledienstegesetz | |
| Article 2: Teleservices Data Protection Act - Teledienstedatenschutzgesetz | |
| Article 3: Act on Digital Signature - Gesetz zur digitalen Signatur | |
| Article 4: Amendment of the Penal Code - Strafgesetzbuch | |
| Article 5: Amendment of the Administrative Offences Act - Ordnungswidrigkeitengesetz | |
| Article 6.: Amendment of the Act on the Dissemination of Publications Morally Harmful to Youth - Gesetz über die Verbreitung jugendgefährdender Schriften | |
| Article 7: Amendment of the Copyright Act - Urheberrechtsgesetz | |
| Article 8: Amendment of the Price Indication Act - Preisangabengesetz | |
| Article 9: Amendment of the Price Indication Ordinance - Preisangabenverordnung | |
| Article 10: Return to Uniform Order of Ordinance - Rückkehr zum einheitlichen Verordnungsrang | |
| Article 11: Entry into force |
The Teleservices Act comprises the central provisions essential for the economic development of new information and communication services (teleservices). These include above all the permanent establishment of the freedom of access to teleservices and clarification regarding the responsibility of providers for the content of teleservices.
The law is based on the following principles:
Full responsibility has to be assumed by service providers who offer their own content on the Net. Conditional responsibility has to be assumed by providers who provide third-party content on the Net. These providers can in future be held responsible for illegal third-party content only under two conditions: the particular content must be positively known to them, and it must be technically feasible and reasonably to be expected of them to block such individual content. This reasonableness clause makes it clear that the provider will not be required to make every conceivable effort to prevent utilization of illegal content. No responsibility will be expected of providers who merely provide access to the utilization of third-party content. Such providers are not be treated differently than providers of telecommunication services, who do not know the content communicated and in fact must not know it because of the secrecy of telecommunication.
| "Teleservices Data Protection Act" |
The Teleservices Data Protection Act deals with the protection of personal data used in teleservices. As an area-specific new concept of data protection, this law enables the effective protection of personal data while at the same time taking into consideration new forms of economic activity. This is done by using the principles of data avoidance and of system data protection as well as the requirement of transparency; with the introduction of the possibility of electronic consent, new, technology-matching forms of giving consent under data protection law are being created for providers and users as a prerequisite for the admissibility of collecting and using personal data.
| "Act on Digital Signature" |
The Act on Digital Signature defines the framework for the safe use of digital signatures in the networks (e.g. business transactions). The IuKDG confines itself to drawing up a registration and monitoring procedure, similar to trade law, for the infrastructure required for the employment and use of digital signatures as well as the description of the requirements to be met by the necessary technical components. Specific technical procedures are not prescribed; digital signature procedures outside the law are permitted.
| Protection of minors |
The legal measures for the protection of minors consist in a three-stage system with each stage corresponding to the degree of potential harmfulness of the content. They ensure the protection of children and young persons and at the same time guarantee the right to the free formation and expression of opinion:
Stage 1: Amendment of the Penal Code and the Administrative Offences Act (e.g. liability to prosecution for disseminating the so-called Auschwitz lie also in the Net);
Stage 2: Putting on the index of harmful, but not prohibited, content by the Federal Board for the Review of Publications Harmful to Youth (Bundesprüfstelle für jugendgefährdende Schriften); the dissemination of such information is admissible only if technical measures have been taken to ensure that minors cannot call up such information;
Stage 3: Providers whose offers may include content morally harmful to youth are under the obligation to appoint a "youth protection commissioner". This commissioner is to advise both users and providers on all questions relating to the protection of young persons. (18)