Federal Law to Regulate the Conditions for Information and Communications Services (IuKDG) ("Multimedia Law")

Final Version, June 29, 1997

Translation and Commentary by Christopher Kuner, Esq.

Morrison & Foerster LLP, Brussels

Translation copyright 1997 Christopher Kuner. Reproduction is permitted, provided that this translator's note, including the above copyright notice, is retained in its entirety.

Commentary: This is a translation of the final version of the "Multimedia Law" which was approved by the German parliament (Bundestag) on June 13, 1997. It is all but certain that the law will enter into force without further changes; at the time this introduction was written, the only uncertainty was whether the Federal Council (Bundesrat), which is controlled by the opposition parties, would demand that a Consultative Committee (Vermittlungsausschuss) be called, which would result in entry into force being delayed until at least November 1; otherwise, the law is set to enter into force on August 1, 1997.

While it is not possible to give a detailed evaluation of the law here, there has been considerable controversy both in and outside Germany as to whether the "Multimedia Law" is a step forward or whether it represents overregulation which will negatively effect Internet use in Germany. While the government is obviously of the former opinion, a number of companies and legal experts are concerned that the Law has not been properly thought out and represents too much regulation too soon; this is particularly true regarding the distinction between "teleservices" and "media services", the data protection provisions, and the Digital Signature Law (the final version of the Digital Signature Law passed by the Bundestag is available separately on this site).

Changes from the final draft of the Law presented to the Bundestag on December 20, 1996, are marked in boldface. The main changes from the final draft are as follows:

(1) Deletion of the former 5, para. 3 of the Law Concerning Data Protection in Teleservices. This paragraph would have given the criminal justice and intelligence authorities almost unlimited access to contractual data concerning the use of teleservices, and proved very controversial in Germany.

(2) Major changes to Article 7, which amends German copyright law to implement the EU Database Directive.

(3) Reference in Article 11 to the likely date the Law will enter into force.

Article 1

Law on the Use of Teleservices (TDG)

1

Purpose of the Law

The purpose of this law is to create uniform economic conditions for the various uses of electronic information and communication services.

2

Area of Application

(1) The following provisions apply to all electronic information and communication services which are intended for the individual use of combinable data such as characters, pictures, or sounds, and which are based on a telecommunications transmission (teleservices).

(2) Teleservices within para. 1 include, in particular:

1. Offers in the area of individual communication (e.g. telebanking and data transfer);

2. Offers for information or communication, insofar as editorial arrangement to influence public opinion is not the primary purpose (data services, e.g. traffic, weather, environmental, and stock information, as well as the dissemination of information concerning goods and services);

3. Offers for the use of the Internet or other networks;

4. Offers for the use of telegames;

5. Offers of goods and services in electronically-accessible data bases with interactive access and the possibility to order directly.

(3) Para. 1 applies irrespective of whether the use of the teleservices is with or without cost, either wholly or partially.

(4) This law does not apply to:

1. Telecommunications services and the commercial provision of telecommunication services under  3 of the Telecommunications Law of July 25, 1996 (Federal Gazette I, p. 1120);

2. Broadcasting within the meaning of  2 of the Rundfunkstaatsvertrag.

3. Offers of content by distribution and access services under  2 of the Mediendienste-Staatsvertrag of January 20-February 7, 1997, insofar as the main emphasis is on editorial arrangement to influence public opinion.

(5) Legal provisions concerning the press remain unaffected.

3

Definitions

Within the meaning of this law:

1. "Service providers" are natural or legal persons or groups of persons who make either their own or third-party teleservices available for use, or who provide access for such use;

2. "Users" are natural or legal persons or groups of persons who seek to use teleservices.

4

Freedom of Access

Teleservices need not be licensed or notified, within the scope of the laws.

5

Responsibility

(1) Service providers are responsible under the general laws for their own content which they make available for use.

(2) Service providers are only responsible for third-party content which they make available for use if they have knowledge of such content and blocking its use is both technically possible and can be reasonably expected.

(3) Service providers are not responsible for third-party content to which they merely provide access for use. The automatic and temporary storage of third-party content because of a user access constitutes the provision of access.

(4) Any duties to block the use of illegal content according to the general laws remains unaffected, insofar as the service provider gains knowledge of such content while complying with the obligation of telecommunications secrecy under  85 of the Telecommunications Law, and blocking is both technically possible and can be reasonably expected.

6

Provider Identification Marking

Providers must display the following for their commercial offers:

1. Name and address, as well as

2. Name and address of the authorized representative (in the case of groups of persons).

Article 2

Law Concerning Data Protection in Teleservices (TDDSG)

1

Area of Application

(1) The following provisions apply for the protection of personal data with regard to teleservices within the meaning of the TDG.

(2) Insofar as not otherwise provided in this law, the provisions concerning the protection of personal data which are otherwise applicable shall apply, even if such data is not processed or used in data files.

2

Definitions

Within the meaning of this law:

1. "Service providers" are natural or legal persons or groups of persons who make teleservices available for use or who provide access for such use;

2. "Users" are natural or legal persons or groups of persons who seek to use teleservices.

3

Principles for the Processing of Personal Data

(1) Personal data may only be collected, processed, and used by service providers to perform teleservices if this law or another legal provision so allows or the person affected has given his consent.

(2) The service provider may only use data collected to perform teleservices for other purposes if this law or another legal provision so allows or the person affected has given his consent.

(3) The service provider may not make the provision of teleservices dependent on consent of the user that his data may be processed or used for other purposes, if access to such teleservices is otherwise impossible or cannot be reasonably expected.

(4) The design and selection of technical facilities for teleservices shall be oriented toward the goal of collecting, processing, and using either no personal data or as little as possible.

(5) The user shall be instructed concerning the method, scope, place, and purposes of collection, processing, and use of his personal data before it is collected. With regard to automatic processes which make possible a later identification of the user and make preparations for the collection, processing, or use of personal data, the user shall be instructed before this process begins. The content of such instruction must be accessible for the user at all times. The user can waive such instruction. Such instruction and any waiver must be recorded. A waiver does not constitute consent within the meaning of paras. 1 and 2.

(6) The user shall be informed before he gives his consent that he has the right at any time to prospectively revoke such consent. Para. 5, sentence 3 applies accordingly.

(7) Consent may also be given electronically, if the service provider assures that

1. it can only be given by an unambiguous and conscious act of the user;

2. it cannot be indiscernibly changed;

3. its author can be determined;

4. such consent is recorded; and

5. the content of the consent can be accessed at any time by the user.

4

Data Protection Duties of the Service Provider

(1) The service provider shall make it possible for the user to use teleservices and to pay for them either anonymously or using a pseudonym, insofar as this is technically possible and can be reasonably expected. The user shall be informed about this possibility.

(2) The service provider shall insure by technical and organizational means that

1. the user can break off its connection with the service provider at any time;

2. any personal data concerning the process of retrieval, access, or any other use are deleted immediately after termination, insofar as any further storage is not necessary for billing purposes;

3. the user can make use of teleservices without any third party becoming aware of this;

4. personal data concerning the use of various teleservices by a particular user are processed separately; any combination of such data is not permitted, to the extent that this is not necessary for billing purposes.

(3) The user shall be informed about any further transfer to another service provider.

(4) User profiles are permissible only if pseudonyms are used. Any user profile covered by a pseudonym may not be combined with data concerning the holder of the pseudonym.

5

Contractual Data

(1) A service provider may collect, process, and use personal data of a user to the extent necessary for the existence, substantive structure, or amendment of a contractual relationship with him concerning the use of teleservices (contractual data).

(2) Processing and use of contractual data for purposes of advising, advertisement, market research or structuring technical facilities of teleservices as needed is only permissible if the user has given his express consent.

6

Use Data and Billing Data

(1) The service provider may collect, process, and use personal data concerning the use of teleservices, insofar as this is necessary

1. to make it possible for the user to use teleservices (use data), or

2. to bill for the use of teleservices (billing data).

(2) The service provider shall delete

1. Use data as soon as possible, but at the latest directly following the end of each use, insofar as billing data is not involved;

2. Billing data insofar as it is no longer necessary for billing purposes; billing data pertaining to a particular user which is stored for the creation of detailed bills concerning the use of particular services at the user's request in accordance with para. 4 shall be deleted at the latest 80 days following dispatch of such detailed bill, unless a request for payment is disputed within this period or is not paid despite a demand for payment.

(3) A transfer of use or billing data to another service provider or to a third party is not permitted. The powers of the criminal justice authorities shall remain unaffected. A service provider who provides access to the use of teleservices may only transfer the following to other service providers whose teleservices have been used by a particular user:

1. Anonymised use data for the purpose of market research;

2. Billing data, insofar as necessary for the purpose of collecting on a claim.

(4) A service provider that has contracted with a third party concerning billing may transfer billing data to such third party to the extent necessary for this purpose. Such third party shall be obligated to observe the duty of telecommunications secrecy.

(5) A bill concerning the use of teleservices may not show the provider, time, length, type, content, and frequency of those particular teleservices used by a user, unless the user requests a detailed bill.

7

Informational Rights of the User

The user has the right to view for free at any time on the premises of the service provider stored data concerning his person or his pseudonym. Such information shall also be granted to the user electronically upon his request. Such informational right is not excluded under  34, para. 4 of the Federal Data Protection Law in the case of temporary storage within the meaning of  33, para. 2, no. 5 of the Federal Data Protection Law.

8

Data Protection Enforcement

(1) Section 38 of the Federal Data Protection Law shall be applicable, with the proviso that any examination may also be made even if grounds for a violation of data protection provisions do not exist.

(2) The Federal Data Protection Officer shall monitor the development of data protection for teleservices and shall report thereon within the scope of his report under 26, para. 1 of the Federal Data Protection Law.

Article 3

Digital Signature Law

[A translation of and commentary on the Digital Signature Law are available separately on this site.]

Article 4

Amendment of the Criminal Code

The Criminal Code in the version promulgated on March 10, 1987 (Federal Gazette I, p. 945, 1160), last amended by ... (Federal Gazette ...), is amended as follows:

1. Section 11, para. 3 of the Criminal Code shall read as follows:

"(3) Audio and video recording mechanisms, data storage mechanisms, recordings, and other representations shall be the equivalent to writings in those provisions which refer to this paragraph."

2. Section 74d is amended as follows:

a) In  3 the words "( 11 para. 3)" are added after the word "writings".

b) In  4 the words "if at least one copy" are replaced by the words "if a writing ( 11 para. 3) or at least one copy thereof".

3. In 86 para. 1 the words "or make publicly available in memory" are added after the word "runs".

4. Section 184 is amended as follows:

a) In para. 4, the words "or nearly real" are added following the word "actual".

b) In para. 5, sentence 1, the words "or nearly real" are added following the word "actual".

Article 5

Amendment of the Law on Misdemeanors

The Law on Misdemeanors as promulgated on February 19, 1987 (Federal Gazette I, p. 602), last amended by .... (Federal Gazette ...), is amended as follows:

1. In  116 para. 1,  120 para. 1 no. 2, and  123 para. 2 sentence 1, a comma and the words "data storage mechanisms" are inserted in each case after the words "video storage mechanisms".

2. Section 119 is amended as follows:

a) In para. 1 no. 2, the words "or by granting public access to data storage mechanisms" are added after the word "representations".

b) In para. 3, a comma and the words "data storage mechanisms" are added after the words "video storage mechanisms."

Article 6

Amendment of the Law on the Dissemination of Writings Harmful to Minors

The Law on the Dissemination of Writings Harmful to Minors as promulgated on July 12, 1985 (Federal Gazette I, p. 1502), last amended by ... (Federal Gazette ...), is amended as follows:

1. The name of the law is amended as follows:

"Law on the Dissemination of Writings and Other Media Harmful to Minors"

2. Section 1, para. 3 is amended as follows:

"(3) Audio and video storage mechanisms, data storage mechanisms, pictures and other representations are equivalent to writings. Broadcast transmissions under  2 of the Rundfunkstaatsvertrag and offers of content by distribution and access services under  2 of the Mediendienste-Staatsvertrag of January 20-February 7, 1997 which have their main emphasis on editorial arrangement to influence public opinion do not constitute writings under this Law.".

3. Section 3 is amended as follows:

a) In para. 1, a comma shall replace the period at the end of no. 3, and the following no. 4 is added:

"4. distributed, made available, or otherwise made accessible by electronic information or communication services."

b) The following sentence is added to para. 2:

"Para. 1, no. 4 does not apply if technical measures have been taken so that the offer or dissemination in Germany can be limited to adult users."

4. Section 5, para. 3 is amended as follows:

"(3) Paragraph 2 does not apply:

1. if the action takes place in commerce with the relevant trade, or

2. if dissemination to or access by children or minors is excluded by technical or other means."

5. After  7, the following  7a is added:

" 7a Youth Protection Officer

Anyone who in the course of business maintains electronic information and communications services available for use which are based on telecommunications transmission shall appoint a youth protection officer, if such services are generally offered to the public and may contain content harmful to minors. Such person is the contact person for users and advises the service provider in questions relating to the protection of minors. The service provider shall consult with him regarding services offered and structuring the general conditions of usage. He may suggest to the service provider that certain services be restricted. The service provider may also fulfill its duty under sentence 1 by obligating a voluntary self-control organization to fulfill the functions under sentences 2 through 4."

6. The following no. 3a is added following  21, para. 1, no. 3:

"3a. disseminated, made accessible, or otherwise made available in violation of  3, para. 1, no. 4,"

7. Section 18 is amended as follows:

"(1) A writing is covered by the restrictions of 3 to 5 if its content is wholly or mostly identical with a listed writing, without it being necessary that such writing itself be listed and that an announcement be made. The same applies if a court has ruled in a final judgment that a writing is pornographic or contains content covered by 130, para. 2 or 131 of the Criminal Code. 

(2) If doubt exists whether the requirements of para. 1 are fulfilled, then the chairman shall apply for a decision by the Federal Review Board; an application ( 11, para. 2, sentence 1) need not be made. 12 shall apply accordingly.

(3) If a writing is taken into the list, then  19 shall apply accordingly."

8. Section 18a is deleted.

9. Section 2 is amended as follows:

a) The existing text shall be new para. 1.

b) The following para. 2 shall be added:

"(2) If it is obvious that a listing would be inappropriate, the chairman may terminate the proceedings."

10. Section 21a, para. 1 is amended as follows:

"(1) Anyone doing the following shall be guilty of a misdemeanor:

1. Failing to point out distribution restrictions to a purchaser in violation of 4, para. 2, sentence 2, or

2. Failing to appoint a Youth Protection Officer or obligating a voluntary self-control organization to fulfill such functions in violation of 7a, para. 1, sentence 1."

Article 7

Amendment of the Copyright Law

The Copyright Law of September 9, 1965 (Federal Gazette I, p. 1273), last amended by ... (Federal Gazette ...), is amended as follows:

1. Section 4 is amended as follows:

" 4

Compilations and Database Works

(1) Collections of works, data, or other independent elements which constitute a personal intellectual creation on account of the selection or structure of their elements (compilations) are protected like independent works, regardless of any copyright or related protective right which may exist in their individual elements.

(2) A database work within the meaning of this law is a compilation, the elements of which are arranged in a systematic or methodical way and individually accessible by electronic or other means. A computer program used to create a database work or to allow access to its elements ( 69a) is not part of a database work."

2. Section 23, sentence 2 is amended as follows:

a) The word "or" following the word "arts" is replaced by a comma.

b) The words "or concerning the processing or restructuring of a database work" are added following the word "architecture".

3. Section 53 is amended as follows:

a) The following para. 5 is added after para. 4:

"Para. 1 as well as para. 2, nos. 2 to 4 do not apply to database works, the elements of which can be accessed individually by electronic means. Para. 2, no. 1 applies to such database works insofar as scientific use is not carried out for commercial purposes."

b) The existing para. 5 and 6 shall become paras. 6 and 7.

4. The following 55a is added after 55:

55a

Use of a Database Work

The processing and reproduction of a database work by the owner of a duplication of the database work which has been placed in circulation by transfer with the author's agreement, by one otherwise entitled to use it, or by one to whom access to a database work is given under a contract with the author or with a third party by the author's consent, is permissible, if and to the extent that such processing and reproduction is necessary for access to the elements of the database work and for its normal usage. If only part of a database work is made accessible according to a contract under sentence 1, then only the processing and reproduction of this part shall be permissible. Any contrary agreements shall be invalid."

5. The following sentence 2 is added after 63, para. 1, sentence 1:

a) "The same applies under 53, para. 2, no. 1 and para. 3, no. 1 for the reproduction of a database work."

b) The existing paras. 2 and 3 shall become paras. 3 and 4.

6. The following part is added after 87:

"Sixth Part

Protection of the Author of a Database

87a

Definitions

(1) A database within the meaning of this law is a collection of independent works, data, or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means and the obtaining, verification, or presentation of which requires a substantial investment. Any substantial change, evaluated qualitatively or quantitatively, to the contents of a database shall qualify it as a new database, to the extent that such change requires a substantial investment, evaluated qualitatively or quantitatively.

(2) The author of a database under this Law is the person who carried out the investment under para. 1.

87b

Rights of the Database Author

(1) The author of a database has the exclusive right to reproduce, distribute, and publicly display the database as a whole or a substantial part thereof, evaluated qualitatively or quantitatively. The reproduction, distribution or public display of a substantial part of the database, evaluated qualitatively or quantitatively, is equivalent to repeated and systematic reproduction, distribution, and public display of insubstantial parts of the database which conflict with normal exploitation of the database or which unreasonably prejudice the legitimate interests of the database author.

(2) Section 17, para. 2 and 27, paras. 2 and 3 shall apply accordingly.

87c

Limitations on Protection of the Author

(1) Reproduction of a substantial part of a database, evaluated qualitatively or quantitatively, is permissible:

1. for private purposes, except for a database, the elements of which are individually accessible by electronic means;

2. for private scientific use, if and to the extent that reproduction is appropriate and such use is for non-commercial purposes;

3. for private use in teaching, in non-commercial educational and training facilities, as well as in professional education, in the number necessary for an educational class.

In cases under nos. 2 and 3 the source must be clearly indicated.

(2) The reproduction, distribution and public display of a substantial part of a database, evaluated qualitatively or quantitatively, is permissible for the purposes of an administrative, arbitration or judicial procedure, or for the purposes of public security.

87d

Term of Protection

The rights of the database author expire fifteen years following publication of the database, but in any event fifteen years following completion if the database has not been published within this period. The period shall be calculated under 69.

87e

Agreements concerning Use of a Database

A contractual agreement under which the the owner of a duplication of a database which has been placed in circulation by transfer with the author's agreement, one otherwise entitled to use it, or one to whom access to a database is granted under a contract with the author or with a third party by the author's consent, agrees with the database author not to reproduce, distribute, or publicly display an insubstantial part of a database, evaluated qualitatively or quantitatively, is invalid insofar as it neither conflicts with normal exploitation of the database nor unreasonably prejudices the legitimate interests of the database author.

7. In 108, para. 1, the following number is added after No. 7:

"8. exploits a database in violation of 87b, para. 2,"

8. In 119, para. 3, the word "and" following the word "photographs" shall be replaced by a comma, and the words "and databases protected under 87a" shall be inserted following the words "sound-recording mechanisms".

9. The following 127a shall be inserted following 127:

" 127 a

Protection of Database Authors

(1) Protection under 87b shall apply to German nationals and legal persons with their seat in the area of application of this Law. Section 120, para. 2 shall apply.

(2) Protection under 87b shall also apply to legal persons established under German law or the law of one of the States listed in 120, para. 2, no. 2 which do not have their seat in the area of application of this Law, if:

1. their central administration or principal place of business is located within the territory of one of the States listed in 120, para. 2, no. 2, or

2. their registered seat is located in the territory of one of these States, and their operations are genuinely linked with the German economy or the economy of one of these States.

(3) Otherwise, foreign nationals and legal persons enjoy protection in accordance with international treaties and agreements concluded with third countries by the European Community; such agreements shall be promulgated in the Federal Gazette by the Federal Justice Minister."

10. The following 137g shall be added following 137f:

" 137g

Transitional Provisions for Implementation of the Directive 96/9/EG

(1) Sections 23, sentence 2; 53, para. 5; 55a; and 63, para. 1, sentence 2 shall also apply to databases created before January 1, 1998.

(2) The provisions of the Sixth Section of the Second Part shall also apply to databases whose creation was completed between January 1, 1983 and December 31, 1997. In such cases the term of protection begins on January 1, 1998.

(3) Sections 55a and 87e shall not apply to contracts concluded before January 1, 1998."

Article 8

Amendment of the Price Information Law

The following sentence is added to  1 of the Price Information Law of December 3, 1984 (Federal Gazette I, p. 1429):

"Rules concerning information about the price of continuing services may also be made with regard to electronic information and communications services."

Article 9

Amendment of the Price Information Ordinance

The Price Information Ordinance of March 14, 1985 (Federal Gazette I, p. 580), last amended by ... (Federal Gazette ...), is amended as follows:

1. The following sentences are added to  3, para. 1:

"The screen display is also the place where the service is offered. If a service is rendered by means of screen display and is charged by units, then a special display concerning the price of such continuing usage must be offered at no cost."

2. Section 8, para. 2, no. 2 is changed to read as follows:

"2. of  3, para. 1, sentences 1, 2, or 4, or para. 2, in each case also in connection with  2, para. 5, concerning drawing up, providing, or making available price lists, or concerning the offering of a notice of the price,".

Article 10

Return to Uniform Order of the Ordinance

The portions of the Price Information Ordinance which are based on Article 8 may be amended by a legal ordinance based on authority under  1 of the Price Information Law.

Article 11

Entry into force

This law enters into force on August 1, 1997, with the exception of Article 7, which enters into force on January 1, 1998.

END